A 40-year-old Cortez man, who had his second-degree murder conviction vacated in October due to ineffective counsel at his 2004 trial, could be getting out of jail soon.
Russell Wasley, district attorney for the 22nd Judicial District, and defense attorney Rick Levinson argued over whether or not Farrell Greenlee should be allowed bail.
Wasley said the DAs office has appealed District Judge Jeffrey Wilsons order that Greenlees sentence be vacated, and therefore he should remain held without bail until a ruling comes from that court.
Our position is until the decision is decided by the appellate court, bond should be denied, he said at Tuesdays hearing.
District Court Judge Douglas Walker asked Wasley if he ruled to not allow bail, would the court be ignoring Wilsons order. Wasley maintained his stance that Greenlee should not be allowed a bond.
Levinson, attending the hearing via telephone from Colorado Springs, said since the sentence was vacated his client is entitled to bond, which he said would be around $50,000 for a second-degree murder charge in Montezuma County.
Levinson also said Greenlee, who attended the hearing in person, should not be denied bail just because an appeal has been filed, which could take up to a year for a ruling to be made.
Wasley claimed the jurisdiction rested with the appellate court and only it could decide the question of whether a bond amount should be allowed.
Walker disagreed, saying the trial court always has the right to set a bail amount, especially in a 35C hearing in which Greenlees conviction was vacated.
I am inclined to believe (this court) has the jurisdiction to set a bail amount for Mr. Greenlee, he said, adding that he thinks the defendant should be allowed a bond amount.
Wasley said Wilsons order did not discuss Greenlee being released on bond and wanted time to notify the mother of the woman killed. Marcie Stewart-Jacobson was killed when she suffered a shotgun blast to the head in December of 2003.
Greenlee was convicted of the crime in January of 2005, but maintained the shooting was accidental.
Walker set a hearing for Tuesday, Dec. 4 at 9:30 a.m. to hear arguments on whether Greenlee is entitled to bail, if the trial court has the jurisdiction to do so and what the bail amount and conditions would be if granted.
I am kind of thinking he must be (allowed bail) because the conviction was vacated, the judge said.
Walker said pre-trial services will be contacting Greenlee in the next few days, and while he does not have to speak to them, the report will be used in setting possible bond stipulations.
Levinson asked Walker if he could make sure that Greenlee be allowed to call him from the jail.
Judge Wilson ruled that the conviction be vacated because Greenlees defense attorney failed to call witness Randy Matthews to testify at the trial. It was argued that his testimony may have contradicted a prosecution witness testimony.
Failing to call Matthews to the stand as a witness by Greenlees attorneys severely undercut the defenses theory of the case, Wilson wrote in his order.
michaelm@cortezjournal.com