Farrar v. Raemisch et al

Filing 69

ORDER DENYING APPLICATION FOR HABEAS CORPUS by Judge Richard P. Matsch on 5/31/17. (ktera)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Senior District Judge Richard P. Matsch
Civil Action No. 15-cv-01425-RPM
CHARLES FARRAR,
Applicant,
v.
RICK RAEMISCH, Exec Director, Colorado Dept of Corrections,
JAMES FALK, Warden, Sterling Correctional Facility, and
CYNTHIA COFFMAN, Attorney General, State of Colorado,
Respondents.
_____________________________________________________________________
ORDER DENYING APPLICATION FOR HABEAS CORPUS
_____________________________________________________________________
The question raised by Charles Farrar in this Application for a Writ of Habeas
Corpus pursuant to 28 U.S.C. § 2254 is whether the refusal to grant him a new trial after
the accuser in his sex offender trial has recanted all of her testimony is a violation of his
Constitutional right to due process of law under the Fourteenth Amendment.
The case was summarized by the Colorado Supreme Court in Farrar v. People,
208 P.3d 702 (Colo. 2009). The four member majority of justices affirmed the trial
court’s denial of relief after a full evidentiary hearing under Crim. P. 33. A brief
recitation is necessary for this analysis of the Applicant’s claim.
At age fifteen Sacha Brod claimed that her mother Debbie Brod and stepfather
Charles Farrar repeatedly forced her to engage in sexual intercourse and sodomy
beginning when she was eleven years old. Both of the accused were charged with
multiple offenses. The court ordered separate trials. Charles Farrar was convicted of
some of the charges and acquitted of others. He was sentenced to an aggregate 145

years to life. The charges against the mother were dismissed because Sacha Brod did
not want to testify at another trial.
At the post trial hearings Ms. Brod testified that before trial she had told the
prosecutors and others that her story was not true and that they forced her to testify as
she did. The prosecutors and others denied those allegations and the trial judge found
that Sacha’s allegations were not credible.
That determination is binding on this court. Sacha testified that her accusations
and trial testimony were fabrications motivated by her desire to get away from home
and live with her grandmother in Oklahoma. She explained the reasons for her extreme
unhappiness with the living conditions, none of which related to sexual abuse.
As to this testimony, the trial judge observed that the jury had found the victim’s
testimony believable as to some counts and not others. Recognizing the serious
credibility issues and that the trial testimony could be used as impeachment at a new
trial the court concluded that:
Nothing that the Court heard or saw during this post-conviction
proceeding persuades it that the newly discovered evidence would
produce a complete acquittal at a new trial. In all probability, another jury
contentions and reject others.
would accept some of Ms.
Exhibit P.
The Supreme Court majority said:
Because the district court was not reasonably convinced that the
victim’s testimony at trial was probably false, it did not abuse its discretion
in denying his motion for new trial.
Farrar, 208 P.3d at 702.

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That statement is not completely correct. The trial judge acknowledged the jury
acquitted Farrar on six counts. Those counts involved events that the victim described
in graphic detail. There may be a difference between false and not believable but it is
telling that the jury accepted general testimony of a hundred or more incidents of sexual
activity but rejected those that were told most explicitly.
The majority opinion gave the following statement of the test for a new trial upon
discovery of new evidence.
Whether to grant new trial upon the discovery of new evidence
undermining confidence in the reliability of criminal convictions is largely a
matter of policy, requiring a balance between the need for finality and the
state’s interest in ensuring the fairness and accuracy of its proceedings.
People v. Schneider, 25 P.3d 755, 762 (Colo. 2001).
Farrar, 208 P.3d at 706.
Surprisingly, there is no mention of the protections of individual liberty provided
by the Fourteenth Amendment.
The majority also ruled that the newly discovered evidence must be of sufficient
consequence for reasons other than its ability to impeach and that, “It must be
consequential in the sense of being affirmatively probative of the defendant’s
innocence...” and “that it would probably produce an acquittal.” Id. at 707. In short, the
Colorado Supreme Court ruled that the trial court correctly denied the motion for new
trial because it did not find that the victim’s trial testimony was entirely false.
The dissenting opinion found the appropriate standard to be whether the newly
discovered impeachment evidence is of such consequence that it would probably result
in an acquittal on retrial and three justices agreed that Ms. Brod’s recanting testimony
“clearly could and probably would change the outcome of the case.” Notably the
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dissenters recognized that an acquittal may result from a reasonable doubt, not actual
innocence.
Under the limitations imposed by 28 U.S.C. § 2254(d), this Court must accept the
state court rulings unless they are contrary to clearly established Federal law as
determined by the United States Supreme Court or were based on an unreasonable
determination of the facts in light of the evidence presented in the hearings on the
motion for new trial.
The Applicant has not produced a U. S. Supreme Court case holding that in the
absence of prior knowledge of the victim’s recanting her complaints of sexual abuse the
presentation of her testimony would violate the Due Process Clause of the Fourteenth
Amendment. The district judge who heard the testimony at the hearings on the Rule 33
motion was the same judge who presided at the trial. He observed Sacha Brod testify
both times and this Court is unable to say that his assessment of her trial testimony
after hearing her recanting testimony was unreasonable.
Other claims of constitutional error were raised but they are rejected for the
reasons set forth in the Respondents’ Answer [Doc.15].
Accordingly, the application must be denied.
CERTIFICATE OF APPEALABILITY
Pursuant to 28 U.S.C. § 2253, the applicant has made a substantial showing of
violations of the Fourteenth Amendment and that reversal is required. Reasonable
jurists could debate this Court’s determination to the contrary. Thus, a certificate of
appealability is granted.

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DATED: May 31, 2017
BY THE COURT:
s/Richard P. Matsch
__________________________
Richard P. Matsch, Senior Judge

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