DA drops charges against Firko
Mesa County prosecutors on Friday dismissed charges against a ranking Colorado State Patrol corporal in the 2010 death of Jason Kemp, as District Attorney Pete Hautzinger cited dim prospects for a conviction after last month’s trial verdict involving another trooper.
Cpl. Kirk Firko was scheduled for trial starting July 16 on charges including criminal trespass and criminal mischief in connection with Kemp’s shooting death on July 20, 2010, at 103 Glade Park Road, Unit B.
The dismissal of Firko’s charges — filed by Hautzinger’s office with prejudice, meaning they can’t be filed again — marks the end of the line of the state’s prosecution of an incident that has also spurred a federal civil lawsuit against the Colorado State Patrol calling into question the agency’s training practices.
“At the end of the day,” Hautzinger said Friday, “it seems if one Mesa County jury was unwilling to convict the person who pulled the trigger, there’s virtually no likelihood another jury will convict the person who opened the door.”
Kemp’s family declined comment.
The DA wrote in the motion that he doesn’t believe “there is any legal or precedential bar” to continue with Firko’s prosecution, given the acquittal of Trooper Gene Lawyer.
Lawyer was found not guilty by a Mesa County jury April 19 on four charges, including criminally negligent homicide. The jury hung on two.
Hautzinger on May 3 dismissed both leftover counts, raising mostly the same arguments he has in Firko’s case.
“By no means should the People’s decision here be interpreted as an endorsement of the actions of Defendant Firko in this matter,” reads the Firko dismissal motion. “Nor is this decision to be seen as a statement on behalf of the People that they believe the actions of either defendant (Lawyer and Firko) were legally justified.”
“The People’s decision here is simply an acknowledgement of the fact there is a significant difference between evidence amounting to probable cause to indict and evidence amounting to proof beyond a reasonable doubt. Given that fact coupled with the People’s obligation to prudently utilize taxpayer resources, the People cannot justify going further with the prosecution in this matter.”
Kemp, 31, was fatally shot by Lawyer in the doorway of Kemp’s home in what started as a non-injury traffic accident investigation.
Lawyer testified he thought Kemp might have had a weapon and said he saw Kemp’s right arm raise up quickly.
Kemp was shot once through the heart. He was unarmed.
The shooting came seconds after a heated encounter as Firko and Lawyer had kicked and pounded at the front door. Lawyer testified he fired pepper spray into Kemp’s face. Kemp held the door shut, demanding they get a warrant.
Lawyer’s defense argued the troopers were justified in trying to force entry after a brief struggle between on the front porch. Lawyer testified Kemp eluded Firko’s grasp, went inside and slammed the door shut.
Prosecutors argued Lawyer’s and Firko’s actions represented a violation of Kemp’s Fourth Amendment protections.
The defense, however, said Lawyer was acting within the scope of duties as a law enforcement officer and consistent with his training. Lawyer testified he properly followed the lead of “his corporal” when he engaged in efforts to kick the door down, saying Firko escalated the situation by kicking and pounding.
Lawyer’s defense raised the possibility that Firko first opened the door by simply turning the knob, early in the encounter, before the door was slammed shut by Kemp.
A juror told The Daily Sentinel after Lawyer’s trial that Hautzinger’s argument about Fourth Amendment violations could have more bearing on Firko’s case.
“That might work better in Firko’s case because he opened the door,” the juror told the Sentinel, speaking on a condition of anonymity.
Hautzinger on Friday wasn’t convinced.
“It’s one thing for a juror to say that after just acquitting the person who pulled the trigger, but it’s quite a different thing to hold that person to that viewpoint after listening to Firko’s point of view at trial as advocated by his attorneys,” the district attorney said.
Firko, meanwhile, had been on unpaid administrative leave after he was indicted in October 2010. That status is expected to change with Friday’s dismissal.
Meanwhile, Lawyer, who testified that he was diagnosed with post-traumatic stress disorder, wants his job back.
The State Patrol has said Kemp’s shooting remains under administrative review.
The American Civil Liberties Union continues to press a federal civil rights lawsuit, filed on behalf of Jason Kemp’s family.
Asked about the fallout of the criminal cases for Grand Valley law enforcement and beyond, Hautzinger said he hopes authorities look beyond how they ended.
“I certainly hope the fact a grand jury indicted, and the DA’s office prosecuted, sends a pretty powerful message to law enforcement to get a search warrant anytime there’s a question whatsoever,” he said.