Court upholds life term  of killer

Mesa County District Judge Dick Gurley did not violate the U.S. Constitution when he allowed a jury to see Douglas Thames wearing prison garb in a video interview during his 2015 murder trial in the 1994 sexual assault and killing of a Palisade woman, the Colorado Court of Appeals ruled Thursday.

In the first reported decision of its kind in the state, a three-judge panel ruled that while the Fifth and 14th Amendments to the U.S. Constitution prohibit the use of physical restraints and prison clothes of a defendant during trial because it might prejudice a jury, seeing a defendant in a video donning prison garb is not.

"Unlike the visual impact of a defendant's attire throughout a trial, the clothing shown in a video lasting one hour and 14 minutes will not be a 'constant reminder' of the defendant's condition or create prejudicial, continuing influence in jurors' minds," Judge Lino Lipinsky wrote in the ruling, which was joined by Judges Gilbert Roman and Jerry Jones.

"Thames does not contend that the trial court required him to appear in the courtroom in visible restraints or prison clothes," Lipinksy added. "Rather, in the video, he is not restrained, is not handcuffed, and is depicted seated in what appears to be a conference room with pictures on the wall. Under these circumstances, Thames was not deprived of his right to have the jury presume him innocent."

Thames, 46, is the second person convicted in the 1994 murder and sexual assault of Jacie Taylor. That happened after the first man convicted in the case, Robert Dewey, was exonerated in 2012 after spending 18 years in prison for a crime he did not commit. He was exonerated by the same DNA evidence that was used to convict Thames, who now is serving a sentence of life without the possibly of parole.

After Dewey was exonerated, prosecutors focused on Thames, who was already serving a life sentence with the possibly of parole in the 1989 murder and rape of Susan Doll in Fort Collins. His sentence, which also included 48 years for sexual assault in the Taylor case, means he no longer is eligible for parole.

Thames also tried to argue that he deserved to have his conviction and sentence tossed out because Gurley did not allow the jury to hear evidence that Dewey had been convicted of the crimes, and that prosecutors implied that his silence in the video when confronted with Taylor's death implied he was guilty.

The court disagreed, saying that Thames' attorneys were able to point to several alternative suspects in the case, including Dewey, who couldn't be said to have been convicted because that conviction was reversed.

"Dewey's conviction became a legal nullity upon his exoneration and, therefore, was not a past conviction," the opinion said. "We do not agree (on Thames' silence on the video) because the prosecution commented on the manner in which Thames answered the officers' questions during the interrogation, and not on Thames' failure to speak."

The appeals court did rule, however, that Thames was denied his right to ask the court to waive several thousand dollars in surcharges that were later added to his sentence without him or his attorneys being present.

The court said that while such charges — in this case for court costs and sex offender, special advocate and genetic testing surcharges — are mandatory under state law, convicted defendants have the right to argue they are financially unable to pay and can have them waived.

As a result, the appeals court remanded that part of the case back to district court to give Thames that opportunity.

Thames is serving his sentence in the Buena Vista Correctional Complex, a maximum-security state prison.