COLORADO

The study of criminal appeals from 1970 to the present revealed 166 Colorado cases in which the defendant alleged prosecutorial misconduct. In 21, judges ruled a prosecutor’s conduct prejudiced the defendant and reversed or remanded the conviction, sentence or indictment. In seven, a dissenting judge or judges thought the prosecutor’s conduct prejudiced the defendant.

Out of the cases in which judges ruled the prosecutor’s conduct prejudiced the defendant, 16 involved improper arguments at trial. The cases in which a dissenting judge or judges thought the prosecutor’s conduct prejudiced the defendant involved improper trial arguments and tactics.

Former Denver prosecutor Craig Silverman tried at least four of the 166 cases. In three, judges ruled that his conduct prejudiced the defendant and reversed the conviction.

Silverman joined the Denver district attorney’s office shortly after graduating law school in 1981 and remained there until 1996, when he resigned to run for the office of district attorney against incumbent Bill Ritter. He had been a prosecutor for 15 years and worked on thousands of cases, taking more than 100 to the trial level.

“I had a very successful career as a trial prosecutor and had some ideas on how I thought the whole office could or should perform,” he told the Center. “I felt my boss at the time had an aversion to the death penalty that I did not share.”

During the campaign, cases that judges reversed due to his errors or misconduct started surfacing. Silverman lost the election and went into private practice. “I became a target for them,” Silverman said. “It was a desire of theirs to try and put a prosecutorial misconduct jacket on me.”

He said the defense bar began criticizing him and the courts started reversing his convictions after he prosecuted the first case in which a Denver jury sentenced a man to death in 14 years.

“Beautiful—one of my proudest accomplishments,” Silverman said of the conviction of Frank Rodriguez for kidnapping, sexual assault and murder. “Rodriguez was one of the most scrutinized cases in Colorado history.”

In 1990, the Colorado Supreme Court upheld Rodriguez’s death sentence. The court reprinted substantial portions of Silverman’s closing argument during the penalty phase of the trial, pointing out comments that were improper, objectionable and erroneous.

In October 1991, the state Supreme Court granted Ronald Socolowski a new trial because Silverman commented on his decision not to testify, a Fifth Amendment right. In the jury’s presence Silverman said Socolowski “needs to testify so I can cross examine.”

Silverman said he does not remember specifics of the case.

“If I made a statement like that, it is likely because a defense attorney stated something as a fact that only a defendant could have stated,” he said.

In December 1991, the Colorado Court of Appeals overturned James Jones’ burglary conviction because of Silverman’s numerous “ill-advised and improper” statements during closing argument. Some of his statements were regarded as unprofessional attacks on the integrity of defense counsel, while others were deemed improper comments on Jones’ character. The court called Silverman’s conduct a “misplaced zeal to win” and remanded the case for a new trial.

“There is not anything I would have done differently,” Silverman said. “That was just a hatchet job—you have to be careful when you have disagreement with lawyers or judges because someday they might be on the court of appeals.”

In 1995, the Colorado Supreme Court overturned LaShawn Harris’ assault conviction and granted him a new trial because of Silverman’s improper closing argument. Silverman gave his argument on January 17, 1991 – the same day the United States commenced military action against Iraq in Operation Desert Storm.

Silverman said he got the idea for his closing argument when he watched former President George Bush’s speech the night before the trial. He compared the assault before the jury to the situation in Iraq because it involved unprovoked aggression. “This was a very intentional act, made clear…by the words uttered by this defendant right before the shooting: ‘I’m going to teach you a lesson white boy,’” Silverman said to the jury in his closing argument. “That’s more or less the same thing that Saddam Hussein said to the United States last night; he’s still saying he’s going to teach us a lesson.”

The court found that Silverman attempted to whip the jury into a patriotic fervor by repeatedly drawing parallels between the facts of the case and what was then occurring in the Persian Gulf, including comparing Harris to Saddam Hussein. While the court stopped short of directly accusing Silverman of illicit or unethical motives, it reversed Harris’ conviction because the repeated improper remarks effectively deprived him of a fair trial. A dissenting judge, while not condoning Silverman’s tactics, thought his closing argument was not so prejudicial as to mandate a new trial.

“It was a great analogy—the court found that it was too good,” Silverman said. “I suppose I could have talked about the War of 1812, but I don’t think that would have been as persuasive.”
  ¶ 11:13 PM