Welty attorney: 'Scandal' in Colorado case

When contacted Thursday for a phone interview about Ward Ryan Welty's criminal case, Welty's attorney, Roger Diamond, spoke at length -- with little to no interruption -- about what he termed "the scandal that's occurring in Fremont County (Colo.)."

"The county court in Fremont County has an economic incentive to impose very drastic, extremely high sentences to make sure the prisons that are located in that county have plenty of inmates, so whereas a court should only consider for sentencing purposes the circumstances of the offense and the background of the person, the court in Fremont County is improperly attempting to keep the prison stocked with prisoners for as long as possible, because the economy of the county depends on the prisons.

"The county has living there families dependent upon the prisons. You have the guards and their spouses and children and so forth living in that county and dependent upon inmates, so the court has an incentive to provide inmates. So in Mr. Welty's situation, he's facing life imprisonment in Colorado, which is totally disproportionate to any alleged wrongdoing that he may have engaged in, and he engaged in no wrongdoing.

"He is innocent of the charges, but faced with a life sentence, he pleaded in California on February 20th for the sole purpose of trying to get the Colorado charges dismissed. This is a nightmare that nobody should have to be involved with.

"In addition to the prisons giving the county courts the incentive to sentence as severely as possible, the judge in the case, Julie Marshall, has had an extremely close relationship with the prosecutor for 20 years. Ms. Eberling basically is the DA who prosecutes in Judge Marshall's court. We have a small, two-judge county, an hour south of Colorado Springs, and for this one Asst. DA Eberling to operate in the same courtroom before the same judge for approximately 20 years is not good for the system of justice. For various reasons, prosecutors should rotate out and go to different courts. It's just, they're too close, it's almost like incest.

"And during the hearing on the motion, on March 9th, the judge was trying to help the prosecutor and made arguments that even the prosecutor had not advanced. For example, the judge, Julie Marshall, asserted that our double jeopardy argument was not valid because Ryan has not yet been convicted in Rancho Cucamonga, because he only pleaded guilty to count three of the charge in Rancho Cucamonga but he's not been sentenced yet.

"But the judge in Rancho Cucamonga, Judge Harrison, specifically ruled on the record that Ryan's guilty plea meant that he was convicted under California law. Judge Marshall, contrary to Judge Harrison, disregarded California law and disagreed with Judge Harrison and contended that since Ryan would not be sentenced until March 20th, a week from tomorrow, that he's not yet convicted.

"I pointed out that she was violating the full faith and credit clause of the U.S. Constitution that requires each state to honor the rulings of the judicial branch of other states. So in this particular case, Judge Marshall, in violation of the U.S. Constitution, basically rejected the ruling of Judge Harrison in order to deny the motion to dismiss.

"That should not be allowed, and that's one of our arguments before the Colorado Supreme Court. I also pointed out to Judge Marshall that after she denied our motion to dismiss she should give me time, and the Colorado Supreme Court time, to address the double jeopardy issue prior to trial.

"Ordinarily a trial court judge, after making a ruling adverse to one side, will allow that side to seek appellate review, and will not try to sabotage that pre-trial appellate review. So after I had the motion to dismiss denied because Marshall disagreed with Judge Harrison as to the meaning of California law - something Judge Marshall had no authority to do - she refused to postpone the trial to allow orderly appellate review in the Colorado Supreme Court.

"Based upon the way the court has conducted this case, I anticipated that possibly could occur, and already had prepared the petition to be filed with the Colorado Supreme Court. The court session before Judge Marshall was not over until 5 p.m. on Monday, March 9th, but on early Tuesday morning, March 10th, in Denver, which is a couple of hours away from Cañon City, I filed the petition with the Colorado Supreme Court and I also asked the Colorado Supreme Court to stay the trial until it has an opportunity to rule on the merits of our petition.

"And the bind we are in is we also need for the Colorado Supreme Court a transcript of what happened in court on Monday, March 9th. The clerk's office closed at 4:30 on Monday, March 9, so while we were filing the petition in Denver before the supreme court, we were ordering the transcript from the trial court in Fremont County. And that's taking just a few days to get.

"And this creates a problem because we want the Colorado Supreme Court to have a full record of what happened before Judge Marshall on Monday, March 9th. And so by not delaying the trial, Judge Marshall has made it more difficult to get an appellate ruling on the issue that we presented to her.

"In my experience, and I've been practicing law for over 41 years, even if a trial judge should disagree with the defense, or with any party, they should at least have the decency to allow pre-trial appellate review without forcing the party to have to scramble and drive fast to Denver. ...

"I also reminded her that Ryan has to be back in Rancho Cucamonga Friday, March 20th for sentencing. Yet if she did not postpone the trial, Ryan would have the problem of having to be in two places at once.

"So Judge Marshall is making it as difficult as possible to get a ruling, and if we can't get the ruling, we have to go to trial. And therefore what Judge Marshall has done is also made it impossible to handle the case in a normal way.

"I have asked the FBI in Denver to investigate the Fremont County court because of the extreme sentences imposed upon defendants when compared with the other counties in the state of Colorado.

"What piqued my interest in this whole subject of local courts giving disproportionately high sentences was the circumstance regarding two juvenile judges in Pennsylvania, who were sending juveniles to juvenile detention facilities in Pennsylvania in exchange for kickbacks from those private facilities. The two juvenile court judges in Pennsylvania who did this were just convicted within the last two or three weeks of federal fraud and obstruction of justice. ...

Ed. note: Click here to read a New York Times report on the Pennsylvania judges.

"This is the situation. So Ryan was basically forced into a maneuver that was designed to block the Colorado prosecution. He would have much preferred to fight the case in California, but by pleading - even though he has a defense to the charge - by pleading guilty in California he hoped to use the double jeopardy provision of Colorado law to avoid a life sentence in Colorado for an alleged crime that he actually did not commit.

"But when the risk is life imprisonment, for strategic reasons a person facing this particular situation might very well do what Ryan did, which was to plead in California to try to benefit from the Colorado double jeopardy law.

"And Eberling, on Monday, her main argument, which the judge did not accept ... Eberling's argument was to attack me for being so clever in setting up this motion to dismiss. She basically claimed that I orchestrated the entire proceeding, because the California sentencing provisions are so much lighter than Colorado's. So that was her main argument, just attacking me for being clever."