State judicial officials appointed a retired District Court judge from Denver to oversee a La Plata County murder trial – a case that went to trial in 2014 but was reversed late last year after an appeals court found bias on the part of a local judge, court documents show.
Third judge tapped to oversee retrial in 2012 murder case
Tommy Mitchell, a 26-year-old Farmington man, appeared last week in La Plata County Combined Courts for a status conference before Senior Judge John McMullen in preparation for an August trial.
Prosecutors have charged Mitchell with 14 crimes, including first- and second-degree murder, first- and second-degree burglary, theft, distribution of less than 5 pounds of marijuana and intimidating a witness related to an April 3, 2012, incident in Ignacio. Judge McMullen is the third judge to preside over the case.
A 12-person jury found Mitchell guilty in 2014 of similar charges. Law enforcement says Mitchell robbed, shot and killed Joey Benavidez, 39. The cases included several co-defendants, including Jeremiah Mason, Armando Yazzie, Shanice Smith, Elijah Timothy Anglin and a juvenile.
At a sentencing hearing involving a co-defendant about a year earlier, 6th Judicial District Chief Judge Jeffery Wilson called the slaying “one of the most cold-blooded murders that have occurred in this county.”
Wilson then oversaw Mitchell’s trial over objections that the judge was biased.
Mitchell was ultimately convicted and sentenced to life in prison without the possibility of parole. He has been serving that sentence as inmate No. 164712 with the Colorado Department of Corrections.
But the Colorado Court of Appeals found in September 2018 that Wilson should have recused himself from the bench after making the “cold-blooded murder” comment, opining that Wilson’s comments “cast a serious cloud on his impartiality and undermined Mitchell’s right to a fair trial,” according to the appellate court opinion.
Third judge tapped to oversee retrial in 2012 murder case
The state appeals court in its opinion reversed Mitchell’s conviction, sent his charges to a lower court for retrial and disqualified Judge Wilson from administering the case.
The Court Executive’s Office for the 6th and 22nd judicial districts appointed 22nd Judicial District Court Judge Todd Plewe to preside over Mitchell’s case Nov. 19, 2018. But, unknown to defense attorneys at the time, the same office had assigned a case to Judge Wilson fewer than two weeks earlier in which Judge Plewe was the victim.
In that case, law enforcement say a man “threatened Judge Plewe with dynamite and weapons and threatened his wife and children with bodily harm and death by the use of various weapons,” court documents show.
Defense attorneys say they didn’t learn of Plewe’s case before Judge Wilson until Feb. 25.
“As Judge Wilson has the ability and discretion to sentence a man who has admitted to threatening Judge Plewe and his family to the Colorado Department of Corrections, there is an undeniable appearance of impropriety,” defense attorneys wrote in a motion to recuse the court.
Defense attorneys suggest Plewe’s case before Judge Wilson could bias Plewe’s interpretations of judicial conduct in the previous trial.
“Whether or not the matter before Judge Wilson concludes prior to Judge Plewe issuing any rulings in Mr. Mitchell’s case, there will always be a taint that Judge Plewe has reason to reward or curry favor with Judge Wilson,” defense attorneys wrote. “There is an appearance of a quid pro quo.”
Prosecutors said in a response to the defense attorneys’ motion “that it might be ‘reasonably inferred’ that Judge Plewe has a reason, however far-fetched, to be biased or prejudiced against the defendant,” District Attorney Christian Champagne wrote in a March 8 motion.
Because of the uncontested nature of the motion, Plewe said in an order that “my obligation to follow precedent, my commitment to the public trust in the judiciary, and my unbending desire to uphold the rule of law – requires that I recuse and not refer the matter for a review hearing.
“The parties to this case deserve finality,” Plewe wrote.
The case was assigned to Senior Judge McMullen, who has yet to rule on at least four motions filed by prosecutors and defense attorneys.
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