The Colorado Court of Appeals issued its opinion in Kailey v. Chambers on June 23, 2011.
Motion for Appointment of Special Prosecutor—Motion for Arrest Warrant.
Petitioner Randy Kailey appealed the district court’s order denying his motion for appointment of a special prosecutor or, in the alternative, a warrant to arrest a particular person. The order was affirmed.
In 1985, Kailey was convicted of two counts of aggravated incest involving his daughters, NJ and BK, for which he was sentenced to thirty-two years’ imprisonment. In 2004, he received information from NJ that DMB, Kailey’s former sister-in-law, had sexually assaulted both his daughters and his granddaughter, MM, while they stayed with her in Arapahoe County. He later received information that DMB had sexually assaulted BK in 2007.
In May 2009, Kailey filed documents with the Denver Police Department and the Denver District Attorney’s (DA) Office accusing DMB of sexually assaulting BK beginning in 1996 (BK was 15) and of 4-year-old MM in 2003 or 2004. The DA’s Office responded that it could not commence a criminal prosecution because the alleged crimes occurred outside the City and County of Denver and that he should contact the DA for the Eighteenth Judicial District (18th J.D.).
Kailey sent his daughters’ letters and affidavits and independent investigative reports conducted by the Colorado Innocence Project to the Englewood Police Department and to the 18th J.D. DA. Five months passed with no response. Kailey then prepared a motion for appointment of a special prosecutor under CRS §16-5-209, and the issuance of a warrant to arrest DMB under CRS §16-3-108. The district court summarily denied the motion for a special prosecutor, finding failure to meet his burden under CRS §16-5-209, and did not explicitly address the request for a warrant.
On appeal, Kailey argued that it was an abuse of discretion to not order the 18th J.D. DA to respond to his motion and initiate an investigation, and that it was error to not issue an arrest warrant. The Court of Appeals rejected both arguments.
DAs belong to the executive branch of government. CRS §16-5-209 limits the broad discretion granted DAs by providing relief in the event of an unjustifiable refusal to prosecute a person for a crime. A DA’s charging decision is afforded a presumption of correctness, and there must be a clear and convincing showing that the decision not to prosecute was arbitrary and capricious and without reasonable excuse before the court will order prosecution or the appointment of a special prosecutor. Here, the evidence in the record provides ample support that the DA’s decision not to prosecute was not arbitrary or capricious.
Kailey also argued it was error not to issue a warrant for DMB’s arrest under CRS §16-3-108. The Court held that private citizens may not apply for an arrest warrant under this statute, only law enforcement officers. Accordingly, the order was affirmed.