Appellate lawyers for convicted child abuser Aaron Thompson say the 114-year sentence he received — much of it for the disappearance and presumed death of his daughter, Aaroné — should be tossed because he was not allowed to keep his original attorney, a constitutional guarantee.
In a 142-page document filed with the Colorado Court of Appeals, Thompson’s lawyers cite nine reasons that either necessitate a new trial or, at the minimum, a lighter sentence. His appeal is to be heard this month.
The primary reason is that Thompson was forced by Colorado law to change lawyers because the state would only pay for investigators and expert witnesses if he retained a free public defender.
Colorado is one of only two states — Maryland being the other — to have the mandate, the appeal notes. It is the first time Colorado’s law is being challenged.
And at least one constitutional law expert thinks the appeal on that point has a legitimate shot at potentially winning.
Other reasons for overturning his convictions, according to the appeal, range from wrongly telling the jury that the death penalty was not an option in the case, to repeatedly portraying Thompson and his family as “sponges upon society” because they were on public assistance, both of which inflamed jurors, the appeal said.
Thompson, 50, was convicted by an Arapahoe County jury in 2009 on 31 charges related to Aaroné’s disappearance and the abuse of her and her siblings. Thompson and his common-law wife, Shely Lowe, had nine children in their Aurora home. Aaroné was Thompson’s daughter by another woman, and the two were common parents to a pair of others — one was born after Aaroné disappeared. Five more were Lowe’s children by other men, and her teenage half brother lived there.
Aaroné would have been 6 years old at the time she was reported missing.
Police also considered Lowe a suspect in Aaroné’s death — her body was never found — but Lowe died in May 2006 of heart problems, about a week after a grand jury was impaneled and a year before Thompson was indicted.
Thompson was indigent at the time of his indictment and had to drop well-known civil-rights attorney David Lane, who had already represented him for two years — at no charge — while the Aurora police investigated Aaroné’s disappearance.
Though Lane was working for free, he asked the state to cover the expenses of investigators and witnesses he said were necessary for Thompson to have a fair trial.
“If I accept a case for an indigent defendant, I should not have to reach into my own pocket,” Lane said in an interview with The Denver Post. “The state should pay.”
Lane reluctantly stepped aside when a judge refused to buck a Colorado Supreme Court decision from 2002 that said defendants must use a public defender in order to obtain free services such as Lane requested.
The move violated a 2006 U.S. Supreme Court decision that said it was unconstitutional to deny a defendant the right to choose his own attorney, known as counsel of choice, the appeal said.
“The right to select an attorney whom the defendant trusts is considered central to the adversary system and of substantial importance to the judicial process,” according to the brief written by attorneys Keyonyu O’Connell and Lynn Hartfield. “Thompson was forced to choose between maintaining his counsel of choice and foregoing the ability to obtain expert and investigative services, or accepting court-appointed counsel.”
State lawyers defending Thompson’s conviction, however, said the U.S. Supreme Court held that the right to counsel of choice only extends to those who can afford their own lawyer, not those who need a public defender.
“If the defendant cannot afford to hire his attorney of choice, or if that attorney is not willing to represent the defendant despite his lack of funds, then the defendant is not entitled to his counsel of choice,” the state argued in its brief.
Lane, according to the appeal, “fully intended” on remaining Thompson’s lawyer for free if the court would have ordered the state to pay the additional expenses.
Thompson’s appeal could potentially succeed, according to Justin Marceau, a professor of constitutional law at the University of Denver’s Sturm College of Law who has worked with Lane on a few cases.
The Colorado case “creates an unnecessary and unseemly conflict between the right of choosing your lawyer … and the right to have experts,” Marceau said. “States cannot impose a cost on a constitutional right. Under the reasoning of a defendant who elects to represent himself, he cannot be denied the right to services. Clearly Colorado, if it’s in the super-minority, to be out there on a limb (denying services without the use of public defender), we must ask why, and I can’t see any benefits in it.”
The tactic, Marceau said, could be for the Court of Appeals to overturn the conviction based on the U.S. Supreme Court case, essentially overturning the Colorado case, and forcing the Colorado Supreme Court to take on the issue anew.
“The appeal has a strong moral claim, it makes great economic sense and is constitutionally sound,” Marceau said. “Why we are one of only a few states in this experiment in denying an indigent person in obtaining ancillary services is certainly worthy of being scrutinized.”
Convicted in November 2009 after a highly publicized trial, Thompson has already served seven years in the Arapahoe County Jail, where he is to remain another five years on a half-dozen misdemeanor abuse convictions. The jail’s website shows he is eligible for release on the misdemeanor sentences, related to Aaroné’s siblings, next year. Then Thompson will be remanded to the state prison system to serve the remaining 102 years of his sentence for convictions related to Aaroné, including child abuse resulting in death.
The civil jury hearing a neglect case against Thompson in 2006 said he was responsible for the girl’s death — though that finding had no bearing in the criminal case.
The appeal has taken more than seven years to put together — they usually take about a year — because of difficulty in cobbling together the thousands of pages of documents, dozens of hours of video- and audio-taped testimony. The appeal is littered with requests for the court to compel Arapahoe County to produce one missing document or another. The appeal was finally filed in October 2016.
Thompson was indicted on 60 counts of crimes, though only 55 were ultimately charged, including child abuse resulting in Aaroné’s death, and a number of conspiracy charges tied to the abuse, coverup and concealment of her death.
Thompson and Lowe were primary suspects in Aaroné’s disappearance after they reported her missing in November 2005. Thompson had said — and maintained — that the girl had run off after she was refused a cookie. But a call to police from a family friend after she saw a televised appeal to help find the child revealed Aaroné was likely dead for at least two years. It quickly changed the search into a homicide investigation.
All seven of the surviving children — Lowe was pregnant with another — initially told police precisely the same story: that Aaroné was still at home, that she ran away, and that things were fine at home. Those tales later unraveled and the children told social workers of a house of horrors in which they were repeatedly abused and beaten by both adults, forced to stand in front of fireplaces or sit in darkened closets for hours. They also said they had not seen their younger sibling in at least 18 months.
Lowe was captured on several audio tapes surreptitiously recorded by friends who agreed to help police. In them, she frequently asserted that Thompson could face the death penalty if convicted and tried to persuade their friends to avoid speaking with police. She asserted Aaroné had simply died and that she had not come forward because she feared her other children would be removed from the home.
There also was testimony Lowe told different stories of the girl’s death, including that she stopped breathing during a bath or was found lifeless in bed. At one time Lowe allegedly asked a friend to help concoct a story that Aaroné was kidnapped during a road trip to see her mother in Michigan.
The appeal said the tapes may have misled jurors into thinking the couple had admitted to a crime.
“The jury may have believed (that) Lowe and Thompson admitted to murdering (Aaroné), that Thompson was ‘getting off easy’ in not facing the death penalty, and the prosecution was being reasonable in not seeking the death penalty,” the brief stated.
Jurors also were “overwhelmed and traumatized” from prosecutors’ relentless use of more than 28 hours of video and taped statements, and the testimony from more than 100 witnesses, many of which were repetitive and spanned many hours on the same topic, the appeal said. It did little more than inflame the jury.
A striking example was the over-presentation of evidence of the allegation that Aaroné was locked in a closet as punishment.
“Not content with testimony to this practice from five children, a teacher, a social worker, and Lowe’s ex-boyfriend, the prosecution brought a full-sized replica of the closet into the courtroom for the jury to view,” the appeal noted. “The effect of the cumulative evidence was that the jury was overwhelmed, confused, and traumatized to such a degree that the court felt that psychological counseling was appropriate.”
State lawyers say the tactic was necessary to show and prove each individual charge of abuse.
The appeal also said prosecutors’ references to “how much the Thompson/Lowe family was costing taxpayers” was unfair, “including their application for food stamps, their request for other assistance with food, and their Section 8 housing.”
Though prosecutors sought to prove Aaroné was not part of a family trip to Florida, noting the family had paid to stay in a time share, “the only possible purpose for this evidence would be to inflame the jurors after the prosecution’s concerted effort to establish the Thompson/Lowe family as sponges upon society,” the appeal stated.
