The Colorado Court of Appeals has granted a motion to dismiss an appeal filed by Molly Midyette, convicted in the death of her 10-week-old son, Jason, in 2006, meaning a Boulder County district judge now can consider whether to grant her a new trial.
Attorneys are waiting for a judge to decide whether to set an evidentiary hearing on Midyette’s request for a new trial, and the Boulder County district attorney’s office last week filed a status report in the case letting the judge know prosecutors don’t object to such a hearing.
The status report also states that the district attorney’s office is in the process of evaluating whether to request a special prosecutor for the case because of a possible conflict of interest.
“Defense counsel have communicated that they intend to subpoena members of the district attorney’s staff, including the district attorney himself, to elicit testimony on various issues,” prosecutors wrote.
District Attorney Stan Garnett said he has not decided whether to request a special prosecutor, but he will have to if the defense subpoenas his staff for anything other than basic procedural information.
“You can’t be both a lawyer and a witness in the same proceeding,” Garnett said.
If Boulder County requests a special prosecutor, Garnett said, the person most likely will come from the district attorney’s office in either Adams, Jefferson or Denver counties, per an informal agreement.
Midyette’s attorneys, Alison Ruttenberg and Thomas Carberry, asked in March to dismiss their client’s appeal after the Colorado Court of Appeals ruled that the appeal of the jury verdict had to be heard before Midyette’s request for a new trial would have the chance to go before a district judge.
The Court of Appeals granted the motion for dismissal April 14, and attorneys now are awaiting a date in district court on their request for a new trial.
Midyette’s attorneys filed their 129-page pleading for a new trial in January, alleging Midyette was manipulated into sacrificing her own legal defense for the sake of her now-ex-husband and co-defendant, Alex Midyette.
Molly Midyette was convicted in December 2007 of child abuse resulting in death after prosecutors showed that she did not get help in time for her 10-week-old son, who had multiple broken bones and brain damage.
She is serving a 16-year sentence for his February 2006 death.
