Civil Rights

DA should have charged deputy in court assault on inmate, judge says, but it's too late to do so now

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A seemingly unprovoked attack on a shackled Colorado inmate by a sheriff’s deputy in a Denver courtroom should have resulted in a misdemeanor assault charge against the deputy, a state court judge said Friday.

But the ruling by Chief Judge Michael Martinez of Denver District Court in the unusual hearing was a hollow victory for inmate Anthony Waller: It appears the deputy, Brady Lovingier, will suffer no sanction beyond a 30-day suspension that was previously imposed, according to the Denver Post.

Although Martinez said a misdemeanor charge should have been brought, the 18-month statute of limitations has already expired on the September 2012 incident, the newspaper explains. Attorney Ken Padilla, who is representing Anthony Waller in a federal civil rights suit, had hoped the judge would call for a felony prosecution, which would have been barely within the three-year statute of limitations.

In addition to potentially ordering the Denver district attorney’s office to charge Lovingier, the judge could also have appointed a special prosecutor, but he did not do so.

District attorney Mitch Morrissey was not present at the hearing, because he had left town to attend a wedding before the Friday hearing was announced. Doug Jackson, the chief deputy district attorney who made the decision not to prosecute Lovingier, represented the office instead, reports the Colorado Independent.

Jackson said he had spoken only with sheriff’s deputies about the incident and accepted Lovingier’s explanation that Lovingier had “ease[d]” Waller “to the ground” after the shackled inmate lost his balance while talking to the judge, the Independent reports. That Waller struck the courtroom wall “was sort of a confluence of momentum that occurred,” the prosecutor said.

Other deputies supported Lovingier’s account, saying that Waller had made an aggressive move, Jackson said. Meanwhile, the inmate’s extensive criminal history would have damaged his credibility with a jury, making prosecution difficult.

Jackson said a courtroom security video did not tell the full story of circumstances surrounding the September 2012 incident. It shows a deputy slamming an unresisting Waller, who was wearing handcuffs and leg irons and had been calmly speaking with the judge on the bench, into a courtroom window frame.

Martinez disagreed, and rebuked Jackson for not performing a more thorough investigation, the Denver Post reports. Martinez also had access to a second security video, not publicly released. It showed what happened from the viewpoint of the presiding judge, who complained after the 2012 hearing to the court’s chief judge about Lovingier’s use of force on Waller.

“I don’t for the life of me see how the prosecutor could make that assessment in light of the video,” Martinez said of the decision not to prosecute.

Following the hearing a spokeswoman for the DA’s office expressed disagreement with Martinez, saying that Jackson is a seasoned prosecutor who knows what evidence is needed to win a conviction in Denver.

“I suspect Judge Martinez may not have that same familiarity,” she said.

Waller’s attorney had a different perspective. “Justice delayed is justice denied,” Padilla said after the hearing.

Related coverage: “Judge to DA: Explain why deputy wasn’t prosecuted over courtroom use of force on chained inmate”

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