Defense and prosecution lawyers in the murder trial of Kenneth H. Botham have been ordered by Dist. Judge William Ela to appear in court next Thursday at 8 a.m. to show cause why hearings on the case should not continue.
The order was issued by Dist. Judge William Ela Thursday afternoon, because as of that day, an original proceeding which State Deputy Public Defender Lee Foreman had indicated he planned to file in the Colorado Supreme Court had not been filed.
No action since May
Proceedings in the case were halted in May, following a two-day change of venue hearing, after which Judge Ela entered a written motion denying the change of the location of the court trial.
The court had set May 19 as the date for a hearing on a motion for discovery and for setting the date for all other motions in a single hearing.
Before the hearings, the defendant’s lawyers requested a stay of execution because they wished to go to the Supreme Court in an attempt to overturn the judge’s change of venue ruling.
“The court was reluctant to stay proceedings, because of the belief that an attack on the court’s ruling on venue must await an appeal after trial on the merits,” Judge Ela wrote Thursday. “The stay was granted when the district attorney did not actively oppose (it).[”]
Judge writes order
“The matter was stayed with the expectation that the public defender would use reasonable diligence to perfect his proceedings for review by the Supreme Court in an original proceedings. Thereafter, first priority was given by the court reporter to the preparation of the transcript, which was delivered to the public defender’s office on June 9, and the exhibits requested by the public defender were mailed by the clerk to the Supreme Court on June 17,” Judge Ela wrote.
“The court is advised that, as of the current date, the public defender’s office has not filed original proceedings in the Supreme Court and has initiated no request with the trial court to provide additional time in which to perfect the original proceedings in the Supreme Court.[”]
“The court concludes that a reasonable time has been consumed to proceed with the original proceeding in the Supreme Court when the trial court’s opinion is that the matter is not subject to an original proceeding in its present posture,” Judge Ela concluded.
Under the order issued Thursday, representatives of the public defender’s office, the district attorney’s office and the court will discuss the timing of motions, arraignment for plea entry and the trial itself, next Thursday.
The transcript of the change of venue hearing, copies of affidavits by local citizens and exhibits in the trial were prepared in June. They went immediately from the office of Mesa County Public Defender Robert Emerson to the state public defender’s office, which was to prepare them for submission of the original proceeding to the Supreme Court.
Botham is charged in the murders of his wife, Patricia, and of Mrs. Linda Miracle and her sons, Troy and Chad, last Aug. 23. The two families lived in the 1900 block Ouray and were neighbors. The four bodies were found in the Gunnison River in late September and early October.
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