Denver (AP) – Kenneth Botham Jr., of Grand Junction, sentenced to death in the 1975 slaying of his wife, his neighbor and her two sons, did not receive a fair trial and must be tried again before a different judge, the Colorado Supreme Court ruled today.
The High Court, in a 7-0 opinion written by Justice William Erickson, upheld Botham’s arguments that the trial judge improperly denied a motion for the seating of a substitute judge, and also improperly refused to grant a motion for a change of venue in the case.
Justice Ericksons’s decision said the combined and cumulative effect of the errors denied Botham his constitutional rights to a fair trial.
Botham originally was sentenced to death following his conviction, but the state’s death penalty was later declared unconstitutional, and a life sentence was imposed.
The issues raised on appeal regarding the constitutionality of the death penalty statute and its application to Botham in the case are moot, the court noted.
The victims in the case were Patricia Botham; Linda Miracle and her two sons, Chad and Troy Miracle.
The Bothams and the Miracles lived across the street from each other at 19th and Ouray in Grand Junction.
On the night of Aug. 22, 1975, Patricia Botham, Linda Miracle and her two sons unaccountably left their homes, police and court records showed.
On Sept. 28, 1975, the body of Linda Miracle was discovered near Bridgeport in the Gunnison River. Patricia Botham’s body was discovered in the river Oct. 2, 1975. The following day the bodies of Chad and Troy Miracle also were found in the river.
Each had been bound with wire to a piece of railroad iron.
A coroner’s report indicated Patricia Botham and Linda Miracle died of asphyxiation, and Chad and Troy Miracle each died from a .22-caliber gunshot wound to the head.
On the night the two women and the children disappeared, neighbors testified they heard shouts and noises, sounding like gun shots, coming from the Botham and Miracle homes in early morning hours.
One neighbor testified she saw someone resembling Botham carrying a bundle from the Miracle residence.
She also said she remembered seeing a car similar to Botham’s parked in the Miracle driveway.
Another neighbor testified she saw a man resembling the defendant outside the Miracle home about 1 a.m. or 1:30 a.m. Aug. 23.
None of the witnesses, however, positively placed Botham in Grand Junction during those hours.
Botham testified he left Grand Junction early in the evening of Aug. 22 for a weekend trip to the mountains to do some photography. Instead of camping, as planned, he spent the night at a motel in Ouray.
Several witnesses testified they saw him in Ouray on the evening of Aug. 22. None of the witnesses, however, testified they could place him in Ouray after 11 p.m. on Aug. 22.
Botham testified he spent the night there, then left the following afternoon. He told the jury he returned to Grand Junction about 4 p.m. Aug. 23. He said his two sons were home when he arrived, but he said he could not find his wife.
After checking with neighbors he called the police and reported his wife missing. During their search for the woman they went to the Miracle residence and discovered Mrs. Miracle and her two sons also were missing.
There were no signs of violence or forced entry at either home, and police speculated the four simply had left their home together.
During their investigation, authorities found evidence they believed linked Botham to the homicides, including wire cutters and the presence of blood stains in Botham’s car. Circumstantial evidence also linked him to the homicides, according to court records.
On Nov. 8, 1975, he was arrested. Following a preliminary hearing, Botham was charged with four counts of first-degree murder.
Prior to trial, Botham’s lawyers from the Public Defender’s Office moved for a change of venue from Mesa County to an area outside the general area served by the Mesa County media. They claimed extensive and prejudicial pretrial publicity in the county prevented a fair trial.
They also filed a motion to select a jury from outside the county.
Both motions were denied.
Botham’s lawyers also subsequently discovered information which they claimed showed the trial judge was prejudiced against Botham, and moved for a substitution.
The court denied the motion on grounds it was untimely and legally insufficient.
Botham’s trial started Nov. 15, 1976. On Dec. 12, Botham was found guilty.
In its decision the Colorado Supreme Court concluded the motions and affidavits established the appearance of prejudice against Botham, and the motion for a substitute judge should have been granted.
One affidavit filed in support of the motion was by Rollie Rogers, then the state’s public defender.
It said he was a party to a conversation with Judge William M. Ela, the trial judge, prior to the start of the trial.
The affidavit claimed the judge had said there were four unsolved homicides in Mesa County, and there was a suspect, but that no one was in custody.
The affidavit set forth that Judge Ela said; “I know what I would do, I would put the guy in jail, choke a confession out of him, and charge him with first-degree murders.”
Judge Richard D. Green of Arapahoe County, who also submitted an affidavit, corroborated the first affidavit.
In denying the motion for a substitute judge, Ela ruled the motion was untimely because more than 10 days had elapsed between the time when the case was assigned to him and the time when the motion was filed.
The High Court noted the purpose and rule for disqualification of a trial judge is to guarantee no person is forced to stand trial before a judge with a “bent of mind,” and noted the fact that the judge did not refer to the defendant by name in his statements is immaterial.
The court also held that the motion was timely.
On the change of venue issue, the Supreme Court noted the case had received extensive publicity, and questioning in the case showed the impact of the pretrial publicity on the jury.
“Under the facts of this case, we conclude that the means adopted by the court were insufficient to protect the defendant’s right to a fair trial,” the opinion said.
The court ruling noted the trial was held in Mesa County District Court, where The Daily Sentinel, the county’s only daily newspaper, had covered in detail the events leading up to the trial.
The newspaper’s articles, and broadcast reports in Grand Junction, had significant impact on the prospective jurors, the decision said.
Foreman said he had learned of the reversal this morning from Norman Mueller, of the public defender’s appellate division.
Mueller, one of two public defenders who presented oral arguments in the appeal before the Supreme Court in September 1979, said: “I am elated with the decision. It has been a long wait. Obviously, I feel this is a very correct decision.”
“My only comment is I’m disgusted,” District Attorney Terrance Farina said this morning. He was chief prosecutor at the trial. Asked whether he might appeal to U.S. District Court of the U.S. Supreme Court, Farina said he would not be more specific in his thinking until he had seen the decision.
Deputy District Attorney Clay Hanlon, who assisted Farina, said: “Personally, it’s kind of disgusting to me (that the conviction was set aside). I believe he received a fair and impartial trial. There was a horrendous amount of work for everyone involved. It makes you wonder if the criminal justice system is working when you have reversals in this type of case which is so time-consuming and so costly to the taxpayer.”
Robert Lubinski, the teacher who served as jury foreman during Botham’s trial, was also unavailable.
But Thelma Hayes, a member of the jury which found Botham guilty of one count of first-degree murder and three counts of second-degree murder, said: “I felt he was guilty without a doubt.”
District Judge William Ela, who presided at the trial, said he has not seen the decision. He said he has only heard from news sources that the conviction was reversed and the case is being sent back for a new trial.
“I wouldn’t make any comment until I see the decision,” Ela said today.
Because the Supreme Court has ruled there should have been a change of venue, he may be required to make the decision on the district where the trial should be set, Ela said.
However, Mueller said he believes the new trial location will be set by the state’s judicial administrator, based on caseloads in various districts, after Ela requests a change of location for the trial.
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