On Sunday, October 10, the left-wing blog Colorado Pols dredged up the familiar primary story about Ken Buck and his comments referring to “high heels,” which caused quite a stir in his match-up against Jane Norton, the former lieutenant governor of Colorado, as they battled for the Republican nomination for U.S. Senate. Pols points to that remark and Buck’s positions on certain issues (abortion, birth control) that they believe “damage” his standing with female voters and partly explain why, despite a commanding lead among men, Buck still trails Sen. Michael Bennet in support from women, giving the GOP candidate a “woman problem.”
The next day, Pols linked to an interview in a story from the Colorado Independent about a 2006 account relayed by a University of Northern Colorado student who was frustrated and angered by Buck’s refusal — he’s the Weld County district attorney — to prosecute a rape case based on the evidence available.
The Greeley Tribune issued an editorial on March 9, 2006, agreeing with Buck’s decision, even as they chided him for his choice of words:
That being said, we understand sometimes the facts of a case simply don’t warrant prosecution because there isn’t a likelihood of conviction. And we’re not in favor of spending taxpayer money just to go through hollow motions, dragging everyone through an emotional and costly trial with no hope of winning.
In this particular case, the woman, a University of Northern Colorado student, admitted she became intoxicated and called her former lover. She asked him to come from Colorado Springs to see her, and when he arrived, according to police reports, she and he agreed she said no several times during their sexual encounter.
Buck told the woman he could not press charges against her attacker, despite the man’s admission to police that she said no. Buck said he must only prosecute cases in which he has a reasonable chance of convicting someone, and this was not one of those cases.
“A jury could very well conclude that this is a case of buyer’s remorse,” Buck said.
While we support his legal reasoning, we believe Buck could have, should have been more sensitive in his choice of words, regardless of what he may have thought a jury or defense lawyer would conclude.
He added, “I don’t want victims to be deterred from the pitiful facts in this case from coming forward.”
We, too, hope other victims won’t be discouraged by this case. Again, though, Buck’s selection of words could have been more appropriate. Calling the facts of the case “pitiful” could be construed by other victims as discouraging.
Emotions aside, the facts of the case and Buck’s responsibility to his constituents compelled him not to prosecute.
According to the Independent, the Greeley police chief and the Boulder County district attorney felt that the case was handled properly and would have been difficult at best:
Greeley Police Chief Jerry Garner said that isn’t the case. He said the case was handled “exactly appropriately” by the DA. “This was a case that would never succeed in court. There was no chance this would result in a conviction,” he said.
At the time, Buck said he sent the police reports to the Boulder County DA’s office for review as well, and that they agreed with his analysis that this would have been a difficult case to prosecute.
While Buck’s wording was, as the Greeley Tribune argued, less than sensitive, the prosecutorial obligations were met:
Local attorney Frank Henderson, who wrote a guest column to the Tribune supporting Buck’s decision, cites American Bar Association Standards for Criminal Justice (3-3.9(a)) as an ethical obligation not to prosecute a case that he does not believe can result in conviction.
Henderson quotes the code as saying: “A prosecutor should not institute, or cause to be instituted, or permit the continued pendency of criminal charges when the prosecutor knows that the charges are not supported by probable cause. A prosecutor should not institute, cause to be instituted, or permit the continued pendency of criminal charges in the absence of sufficient admissible evidence to support a conviction.”
Despite the furor over the story in 2006, Buck went on to be reelected Weld County DA in 2008, without opposition.
Owen Loftus, spokesman for Buck’s campaign, told Battle ’10 that this story has been shopped to news outlets, and that when ProgressNow Colorado could not find any takers, they “facilitated” the interview with the Independent.
But it wasn’t Loftus who made the connection charge; that came from ProgressNow itself.
Rob Witwer, co-author of The Blueprint: How the Democrats Won Colorado (and Why Republicans Everywhere Should Care), argued that this practice was “common” and “no secret” in a conversation with Battle ’10. According to his research, which included insider information from the players themselves, the two organizations involved in this story are just separate heads of the same political beast, and this story is another example of their coordinated efforts:
ProgressNow and the Colorado Independent are both part of the Colorado Democracy Alliance network, and they have a history of coordinating their efforts to push negative information about Republican candidates. This looks like a carefully planned and well-executed effort by two related organizations who have done similar things in prior elections. For example, they worked together to push negative stories about Marilyn Musgrave in 2006 and 2008. Their strategy is to raise the volume enough that the mainstream media feels obligated to report the story. [See Huttner quote, page 183]
Witwer confirmed Loftus’s characterization of a story that was shopped, first to major media outlets, and finally to a sister organization that could be joined by the left-wing echo chamber, forcing the media to report on the story (**Update 10/14/10–Witwer clarifies that he had heard that the story had been passed around, not that he could in fact confirm first had that this was the case–apologies for the confusion). Witwer forwarded Battle ’10 an e-mail sent to “a reporter at a major Denver news outlet” from the Democratic Senatorial Campaign Committee, building on the “crowdsourced” story.
Adam Schrager, 9NEWS political reporter and Witwer’s co-author for The Blueprint, told Battle ’10, “It was not shopped to me.” While Witwer would not disclose the source of the forwarded e-mail, the origin is clear: The DSCC links are almost exclusively to left-wing outfits like Daily Kos and Huffington Post. Major news outlets have followed suit, including ABC and the local Fox affiliate.
Several of the members of the Denver Post’s news and editorial staff declined to comment on “coverage decisions.”