Trooper acquitted in man’s death
It was over and it wasn’t.
“Hmm ... ” said Keith Kemp, father of slain Jason Kemp. The elder Kemp gave a long sigh and picked his words carefully, sitting on a courtroom bench after verdicts were read.
“You just keep plugging away,” he said.
A nine-woman, three-man jury about 3 p.m. Thursday, sitting in judgment of Colorado State Patrol trooper Ivan “Gene” Lawyer, returned verdicts of not guilty on four counts relating to Jason Kemp’s shooting death on July 20, 2010.
Lawyer was acquitted on criminally negligent homicide, first-degree criminal trespass and misdemeanor counts of prohibited use of a weapon and criminal mischief.
Jurors were deadlocked on two counts, including potentially the most serious charge for Lawyer: second-degree assault with recklessness and illegal discharge of a firearm. A conviction on the second-degree assault charge carries a mandatory prison sentence of five to 16 years.
Unresolved Thursday was whether Mesa County District Attorney Pete Hautzinger would retry Lawyer on the two remaining counts.
“I want to know what the jury thought about the counts that were outstanding,” Hautzinger said. “We’ll reappraise where we go from there.”
There were no regrets, he said.
“Our goal all along was to get all the evidence and law in front of a jury, and they had it all,” Hautzinger said. “Four out of six is better than six out of six.”
Flushed with emotion immediately after the verdict, Lawyer declined to comment. A dozen or so supporters huddled outside the courtroom around Lawyer, praying over him.
The courtroom, however, largely was devoid of emotional responses upon reading of the verdict, which came after District Judge Richard Gurley warned the public gallery against such displays.
The verdict was read amid high courtroom security, with at least 10 Mesa County Sheriff’s Department deputies in uniform or plain clothes in the room.
10 to 2
Eric Fenster, Lawyer’s Denver-based attorney, said he expects the remaining charges to be dismissed. While jurors declined to speak with The Daily Sentinel immediately after the verdict, Fenster said they told attorneys in the case they were deadlocked in the defendant’s favor, 10 voting not guilty and two voting guilty, on both hung counts.
“The overwhelming sentiments from the jury were support for Trooper Lawyer, and they showed a real understanding of the volatile conditions he faced that night,” Fenster said.
The Fourth Amendment to the U.S. Constitution and principles of lawful search and seizure, a linchpin of the prosecution’s case, was “very ancillary,” Fenster said.
“This wasn’t just about a DUI, but securing a person who was resisting arrest,” he said.
Prosecutors disputed that notion, arguing Kemp lawfully refused entry in his home and demanded a warrant.
To find criminal negligence, according to state statute, the jury had to find Lawyer’s actions were a “gross deviation from the standard of care that a reasonable person would exercise,” and that the trooper failed to perceive “a substantial and unjustifiable risk that a result will occur or that a circumstance exists.”
Kemp, 31, was fatally shot in the doorway of 103 Glade Park Road, Unit B, 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 when the home’s front door flew open, after repeated kicks at the door and firing of pepper spray inside by Lawyer. Kemp was unarmed.
Lawyer testified he briefly saw Kemp “engaged physically” with another state trooper, Cpl. Kirk Firko, just outside the door before Kemp managed to run back inside and slam the door shut.
That, Lawyer testified, gave him and Firko lawful reason to enter the home without a warrant.
Prosecutors questioned Lawyer’s account, noting Lawyer didn’t mention anything about the encounter between Kemp and Firko when Lawyer testified before a Mesa County grand jury in 2010, or when he was interviewed by Mesa County Sheriff’s Department investigators.
Both troopers began kicking at the door, at least 20 times according to the account of one witness, before it flew open, and Kemp was shot once through the heart.
ACLU weighs in
Firko, meanwhile, is slated for trial starting July 16 on charges including two counts of first-degree criminal trespass, two counts of attempted first-degree criminal trespass and criminal mischief.
Lawyer has been on unpaid administrative leave from the State Patrol, last drawing a paycheck from the agency in October 2010, when he was indicted.
State Patrol Maj. Barry Bratt, who oversees the State Patrol in Mesa County and much of western Colorado, said Lawyer’s status didn’t change with Thursday’s verdicts.
Lawyer, Firko, Sgt. Chad Dunlap and Ralph Turano, a Front Range-based training attorney who worked with State Patrol troopers, are named in a civil lawsuit by Kemp’s parents, Keith and Connie Kemp of Georgia.
The Kemps are represented in the matter by the American Civil Liberties Union, which issued a statement Thursday.
“The verdict underscores the importance of the Kemp family’s pending civil suit,” said Mark Silverstein, legal director at ACLU Denver.
“ACLU lawyers will continue to press our case for justice for Jason Kemp and his family.”