Convicted child abuser Aaron Thompson’s appeal that he was denied his constitutional right to the lawyer of his choice might have a chance if defense attorney David Lane had formally entered his appearance .
So said the Colorado Attorney General’s office, which argued at the state Court of Appeals Wednesday that Thompson’s conviction in 2009 on 31 charges related to the disappearance of his daughter, Aaroné, and the abuse of her and her siblings, should stand.
told the three appellate justices that the 50-year-old’s conviction should be overturned because of a U.S. Supreme Court decision that says defendants are guaranteed the right to their choice of counsel and, if indigent, the right to free additional services at the state’s expense. Colorado is one of two states that require the use of a public defender in order to receive free representation and the services that come with it.
Thompson, from Aurora, during a two-year investigation into Aaroné’s disappearance, but Lane refused to enter his appearance in court until a judge granted his request for the state to pay for investigators and expert witnesses. The judge didn’t rule on the request, Lane stepped away and Thompson was forced to use a public defender.
He eventually was convicted andin the high-profile case, much of it for the disappearance and presumed death of his daughter,. Police theorized she had likely died two years earlier, though her body was never found.
The difficulty is that a three-judge panel from the Court of Appeals cannot overrule a decision of the higher state Supreme Court, so the decision is very likely to fall in the state’s favor. However, additional appeals would likely take up the issue head-on.
“Mr. Thompson wasn’t yet receiving representation, but it would be different had Mr. Lane entered his appearance,” Assistant Attorney General Jillian Price argued. “Clearly that’s not what happened here.”
Appellate attorney Lynn Hartfield said it was clear Lane was already representing Thompson and was forced to give up one constitutional right in order to protect another.
“Mr. Lane had represented him for two years, while police searched his home, they had multiple interviews with the children and … he developed a relationship with Mr. Lane and trusted him,” Hartfield said.
Convicted in November 2009 after a highly publicized trial, Thompson has already served seven years in the Arapahoe County Jail, where he is to remain another five years on a half-dozen misdemeanor abuse convictions. The jail’s website shows he is eligible for release on the misdemeanor sentences, related to Aaroné’s siblings, next year. Then Thompson will be remanded to the state prison system to serve the remaining 102 years of his sentence for convictions related to Aaroné, including child abuse resulting in death.
Justices John Webb, Stephanie Dunn and Steve Bernard peppered lawyers for both sides with questions about a 2004 directive from then-Colorado Chief Justice Mary Mullarkey, and amended several times since, that gives a judge the discretion to allow a defendant access to free services without the use of a public defender.
“The constitutional question seems to be the devil here,” Bernard said, wondering whether the directive could trump a state Supreme Court decision in 2002 that mandated all defendants must use a public defender in order to access its free services.
The U.S. Supreme Court in 2006 ruled in U.S. vs Gonzalez-Lopez that the right to choose an attorney — assuming the ability to afford that lawyer or his agreement to work for free — is reversible error, so any breach of that right supersedes any conviction. Colorado’s court decision has never been squarely challenged until now.
“We want attorneys to take on pro-bono cases,” Hartfield told the justices. “And to reach into their pockets to have them pay for expert services is not something the trial court should impose on people.”
Lane, she explained, was careful not to put himself into a bad spot for what appeared to be a long and expensive case.
“Once he enters his appearance and the court says it will not pay for those services, then he’s on the hook and might have to pay for those expenses himself,” Hartfield said.
The court is expected to issue a written opinion in the coming weeks.
