Colorado judges as prosecutors: How far is too far?

DENVER — In Colorado, judges don't simply have the power to send people to prison.

In rare circumstances, they can also decide whether a person should be charged as a criminal -- a rarely invoked authority upon which two cases now hinge.

Under a 19th century state law, obscure until recently, two judges have been asked to decide whether four men should be tried in rape and murder cases.

The first case involves the 2000 alleged sexual assault of a Denver-area teenager, who initially did not want to pursue charges. When Julie Stene wanted to go to court several years later, the district attorney did not.

Stene won a startling victory against Arapahoe County Dist. Atty. Carol Chambers in May when a judge ordered a special prosecutor appointed and charges filed against the two suspected assailants. The judge has since softened that stance, ordering a new prosecutor to investigate and decide whether to press charges.

In a second case, in rural Chaffee County, a sheriff and coroner are seeking to use the same law to force Dist. Atty. Thom LeDoux to try a murder case that he believes is not provable.

Both cases have stirred debate over prosecutorial power and prompted a challenge of the law's constitutionality.

"A judge should have no business doing a prosecutor's job," said Iris Eytan, who represents Riley McMurdo, one of the two men accused of assaulting Stene.

Stene's attorney, Baine Kerr, counters: "If the prospect of judicial review is something that leads to better decisions and more justice, then I feel good about it."

A handful of states have laws like the Colorado statute. Wyoming had such a law until the 1980s, when the state Supreme Court struck it down, saying it violated the state constitution's principle of separation of powers, said Ted Lauer, professor emeritus of law at the University of Wyoming.

But an important difference separates the Wyoming and Colorado laws, said Chaffee County Atty. Jennifer Davis, who represents the coroner and sheriff. The Wyoming law "allowed a judge to substitute his judgment for that of the prosecutor's," Davis wrote in a legal brief. In Colorado, a judge must find that the prosecutor abused his power in order to take over.

Colorado judges have rarely exercised such powers. In Canon City, a judge ordered a prosecution in a homicide case more than 20 years ago, said LeDoux, who now faces the prospect of a similar order.