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Farrar v. Raemisch

United States District Court, D. Colorado

May 31, 2017

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

          RICHARD P. MATSCH, SENIOR JUDGE.

         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 would accept some of Ms. contentions and reject others.
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.

         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 ...


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