Nifonged in Fort Collins: Timothy Masters

Today's Fort Collins (CO) Weekly features a compelling story detailing Timothy Masters' quest for a new trial after discovering that Eighth Judicial District Court Judges Terrence Gilmore and Jolene Blair, two of the prosecutors in his case, pulled a Nifong and willfully withheld exculpatory evidence that police suspected three other men, including one who confessed to the crime and another whose home overlooked the crime scene and committed suicide after his arrest, had committed the murder Master's was convicted of.

Armed with little more than graphic but unrelated pictures drawn by the then 15 year old Masters and a willingness to withhold evidence and commit perjury, Gilmore and Blair convinced a jury that “no one else” but Masters could have been the murderer. Masters conviction, upheld by the Colorado Appellate Court and Supreme Court when other evidentiary rules and the introduction of character evidence were reviewed and found to be sound, is currently under post-conviction review which began in 2003 based on the allegations of prosecutorial misconduct.

Greg Campbell writes:

When a jury unanimously found Timothy Masters guilty in 1999 of murdering a 36-year-old woman and mutilating her dead body, Fort Collins closed the only murder case on its books that had remained frustratingly unsolved for more than a decade.

But the case may not stay closed for long. Although his conviction has been upheld by both the Court of Appeals and the Colorado Supreme Court, and he’s currently serving a life sentence, Masters is making a compelling case for a new trial, arguing not only that his previous attorneys were incompetent in defending him, but that the prosecution withheld critical information that would have either exonerated him or cast doubt on him as a viable suspect.

The allegation is a serious one: if a prosecutor is found to have intentionally withheld relevant or exculpatory information from the defense or the jury, he or she can be disbarred by the state Supreme Court and possibly face criminal charges.

In Masters’ case, two of the prosecutors are now Eighth Judicial District judges: Terrence Gilmore and Jolene Blair.

But they are hardly the only ones who would face questions of impropriety should this old and presumably solved murder once again go before a jury—if Masters is found to have been sent to jail because prosecutors and police investigators improperly withheld information from the court, it would be an indictment of some of the most well-known names in local law enforcement and politics. If his murder conviction is actually overturned, which his new defense team indicates in dozens of recently filed motions is not only possible but likely, it will be a major crack in the foundation of Larimer County’s justice system.

“If there’s a new trial because there’s evidence that is exculpatory, evidence of an alternative suspect, that evidence clearly could change the course of the trial in terms of reasonable doubt that he’s not guilty of what he’s accused of,” says Fort Collins attorney Andy Gavaldon, who is not involved in the case. “Clearly this is information that should have been disclosed the first time, and if it is of the type and nature that’s being described in the (recent court) filings it would have had a tremendous effect on the first verdict.”

At the very least, it’s clear that if Masters is granted a new trial, he’s not the only one who will be defending himself.

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What’s not in dispute is that 36-year-old Fort Collins resident Peggy Hettrick was stabbed once in the back sometime in the early morning hours on Feb. 11, 1987. The blow was forceful enough that it broke a rib, and the blade lacerated her left lung and left pulmonary artery. She bled to death within minutes.

Her body was found later that morning in a field off of Landings Drive in south Fort Collins by a bicyclist. On the curb was a large blood pool, and a bloody drag trail led more than 100 feet to Hettrick’s body, which was positioned on her back with her hands stretched over her head. Her jeans and underwear were pushed down and bunched around her knees, her shirt and bra pushed up over her breasts. Police would soon discover that her left nipple and skin around her vagina had been excised with a very sharp instrument.

It didn’t take long for police to establish a timeline of Hettrick’s activities shortly before her death. Police believe she finished work at clothing retailer The Fashion Bar, which was then located in The Square on College Avenue, around 9 p.m. She spent much of the night wandering from place to place looking for her roommate, who had the keys to their shared apartment, ending up after midnight at the Prime Minister bar and restaurant (located where The Olive Garden restaurant is today on South College Avenue). There, she met and had drinks with her sometimes-boyfriend Matt Zoellner, who was there to meet another woman. Zoellner left Hettrick at the bar to sit with his date. Around 1 a.m. he offered Hettrick a ride home; she initially accepted, but Zoellner told police that she left the bar alone.

That was the last time she was known to be seen alive.

Within hours of the discovery of Hettrick’s body, Tim Masters quickly became the prime suspect in her murder. Masters lived with his father in a trailer that overlooked the field, and during a canvassing of the neighborhood, police learned from Masters’ father that the boy had veered from his normal path on his way across the field to catch his school bus. His father told police that it seemed Masters had spent a moment or two looking at something before hurrying on his way.

Detective Francis Gonzales—who is now a sergeant assigned to the downtown District One police substation—found Masters at school. Masters told Gonzales he’d seen Hettrick’s body, but assumed it was a mannequin put in the field by friends trying to trick him. Indeed, even the bicyclist who reported the body told police that he too thought it was a mannequin, according to court documents. But because Masters didn’t report the body to police—and because he’d told Gonzales that what he’d seen had been “bothering” him—investigators became suspicious and asked to search Masters’ bedroom. He agreed.

What they found quickly placed the young man at the top of their list of suspects—in Masters’ bedroom, they found six survival-style knives made popular a few years earlier by the film First Blood starring Sylvester Stallone. In the hollow hilt of one knife, they found a sharp scalpel.

But it was in a suitcase where they found what would become the most damning of the prosecution’s evidence a decade later, when he was put on trial for Hettrick’s murder: hundreds of extremely violent drawings and stories. Many of the pictures showed stabbings with knives and swords, and much of the violence was directed at women. A sketch that would be particularly damning showed a figure that had been shot with arrows being dragged by another figure in the same manner police believe Hettrick’s killer dragged his victim.

In Masters’ school backpack, officers found a map of the crime scene with an X marking the location of Hettrick’s body. Masters told police he drew it when telling a classmate of what he’d seen that morning.

While Masters’ volume of drawings raised questions and suspicions, they did not trigger his arrest—at least not yet—because the bedroom and its contents were equally notable for what officers did not find. Officers found no blood and no body parts anywhere in the house. There was no fiber, hair, skin or other physical evidence that linked Masters to Hettrick. The knives would be tested at the Colorado Bureau of Investigation and found to have no trace of the victim’s blood or DNA.

And despite Masters’ apparent fascination with violent death, as his pictures demonstrated, the suspect himself raised some doubts. At the time of the murder, he stood 5 feet 10 inches tall and yet weighted just 115 pounds, roughly the same weight as the victim. The theory that would evolve over the next several years was that this waif of a teen, who was so skinny that classmates called him “Toothpick,” laid in wait for the victim and ambushed her in a blitz-style attack while she stood or walked near the curb smoking a cigarette, stabbing her with enough force to break a rib. He then dragged her dead weight 103 feet into the field and, on a moonless night in a part of Fort Collins that did not have street lights at the time, used a scalpel to excise body parts he’d never seen before except in pornographic magazines, which were also found in his bedroom. He committed this crime without leaving any physical evidence on the body or at the scene, and without contaminating his clothing, body or property with the victim’s blood or DNA.

For his part, Masters steadfastly denied murdering Hettrick in several interviews conducted by Gonzales; by Sgt. Ray Martinez, who would later serve three terms as mayor of Fort Collins; and by Detective Jim Broderick, who is today a lieutenant with the police department’s Professional Standards Unit.

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In 1992, Fort Collins police detectives Linda Wheeler-Holloway and Jim Broderick arrived in Philadelphia with an arrest warrant for Tim Masters. The two had been reviewing evidence and re-interviewing witnesses when one of Masters’ classmates mentioned that Masters told him Hettrick’s killer had removed some of her body parts, a detail that was intentionally withheld from the public. By then, Masters was in the U.S. Navy and stationed in Philadelphia; Wheeler-Holloway and Broderick intended to arrest him and return him to Fort Collins to face charges in Hettrick’s murder.

But Masters had a good reason to know about the body mutilation—one of his classmates had been in the police department’s Explorer Scout program, in which young men and women learn about law enforcement through hands-on experience, and she had helped search the crime scene. She later told classmates, including Masters, that they were told scour the field for a “nipple.”

The visit to Philadelphia did not go as the detectives planned. Wheeler-Holloway and Broderick interviewed Masters for two days in what was called a “tag-team” interrogation in court documents. The interviews were witnessed by members of Naval Intelligence and the Federal Bureau of Investigation. According to court records, Wheeler-Holloway later wrote in a police report, “The FBI agents here believe Tim Masters is innocent and so do I.”

The detectives returned to Fort Collins without executing the arrest warrant.

Broderick was less convinced of Masters’ innocence, and he sought the opinion of San Diego forensic psychiatrist Dr. Reid Meloy, who was given details of the case along with more than 2,000 of Masters’ drawings and stories in order to see if there was a relationship between Masters and the murder. Meloy’s resulting report remains the source of much controversy, and constitutes the only new evidence developed since the crime occurred. The conclusions he drew after reviewing the artwork and the stories were the basis for Masters’ arrest in 1998.

Although Meloy was barred from giving his opinion about whether or not he believed Masters’ pictures and stories implicated him in Hettrick’s murder, Meloy drew a very clear correlation between the circumstances of her death and Masters’ artwork. He testified about the characteristics of a sexual homicide and went into detail about how Masters’ productions could be considered a “fantasy rehearsal” for such a homicide. He showed how specific pictures could be interpreted to reflect the crime—several showed “blitz attacks,” depicted stabbings which Meloy interpreted as sexual in nature and depicted women as murder victims.

Prosecutors argued that the murder was a “displaced matricide” in which Hettrick was killed as a surrogate for Masters’ mother, Margaret, who died of an illness one day short of four years before the murder occurred. Prosecutors said Hettrick looked like Masters’ mother, which is why she was targeted (there are similarities between the women, but Masters’ mother had brown hair while Hettrick had red hair, according to information from a color photo of Margaret Masters’ driver’s license filed with the court).

More than 1,000 pages of Masters’ pictures and stories were entered into evidence and it’s not hard to imagine that, combined with Meloy’s testimony, they had quite an impact on the jury. One picture seems to show a knife stabbing a vagina; in another, a woman is being threatened with a sword by a figure holding a decapitated head behind his back.

“The defendant’s writings and drawings are graphic and often repulsive,” wrote the Colorado Supreme Court in its motion upholding Masters’ murder conviction. “They indicate defendant was deeply fascinated with death, particularly with death by stabbing or slicing.”

But the same opinion made an argument Masters’ original defense team had tried to make: If his pictures and stories were in fact a form of “fantasy rehearsal” for a sexual homicide then why, in all of his voluminous productions, wasn’t there a depiction of the crime as it happened?

“There is not a single image or passage that duplicates the crime,” the opinion continues. “There is not a picture of or story about a woman being stabbed in the back or having her nipple excised.”

Nevertheless, the prosecution, which included then-assistant district attorneys Terrence Gilmore and Jolene Blair—who have both since been appointed as judges in the Eighth Judicial District—hammered home the relevance of Masters’ disturbing artwork as evidence of his guilt.

“The evidence is there,” Gilmore said in his closing remarks. “Sometimes it’s hard to find. Sometimes you have to do a little thinking as to how the defendant could draw something like that unless he knew how it happened. Please look and read, study, dig into the paper bags (of evidence). The evidence is there.”

Prosecutors concluded that “no one else” but Tim Masters could have killed Peggy Hettrick.

With their unanimous verdict of guilt, the jury apparently had little trouble agreeing with him.

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Masters’ current bid for a new trial hinges on the belief that not only could someone else have committed the murder, but that the jury would have agreed if only they’d been given information by the prosecution about other people who defense lawyers believe should have been considered as suspects in Hettrick’s death. One of them was a confessed murderer who killed two women the same year Hettrick was murdered by stabbing them in the back; another confessed specifically to killing Hettrick.

While either of these individuals may have cast doubt on Masters’ guilt in the eyes of the jury, none offered as compelling—or complicated—a case as that of Dr. Richard Hammond, a prominent Fort Collins eye surgeon who was arrested in 1995 for surreptitiously videotaping girls and women in his guest bathroom. Hammond had set up his video equipment to film extreme close-ups of his victims’ genitals, and when police searched his house, they found hundreds of videotapes labeled with victims’ names.

Some of the victims were family members of those in the District Attorney’s office, creating a conflict of interest that required the office to disqualify itself from prosecuting the crime. However, the Hammond case never got to the prosecution stage.

After his arrest, Hammond was placed on a 72-hour mental health hold but shortly after he was released from protective custody, he checked into a Denver hotel and committed suicide.

According to court documents, several police detectives believe Hammond should have been thoroughly investigated for Hettrick’s murder. Not only did he have an obvious morbid fascination with female genitalia, he also had the medical skill and biological knowledge to perform the precise and delicate excisions that were performed on Hettrick’s body. Finally, Hammond’s home—like Masters’—overlooked the field where Hettrick’s body was discovered.

But rather than expand their investigation of Hammond, police instead closed the case after his suicide—in fact, investigators didn’t even look at all the videotapes to see if Hettrick appeared on one. Instead, they burned the evidence to spare Hammond’s victims—including family members of those in the DA’s office—further embarrassment and humiliation.

The defense knew nothing of this investigation, or that some members of the police department thought Hammond should have been investigated as a suspect in Hettrick’s murder.

“The evidence appears extremely strong and incontrovertible that we weren’t given the information we needed,” says Erik Fischer, who along with Nathan Chambers—who also served on Oklahoma City bomber Tim McVeigh’s defense team—represented Masters during his trial and appeals. “We were hampered by their failure to overturn exculpatory evidence.”

Fischer adds that he believes Gilmore “perjured himself” during Masters’ trial when he told the jury that law enforcement had cleared all other suspects in Hettrick’s murder.

“I believe … we should have gotten Hammond as an alternate suspect,” he says. “I think Tim would have walked in 10 minutes.”

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But Stuart Van Meveren, the district attorney at the time of Masters’ trial, says it was up to the judgment of investigators and prosecutors to decide what information to turn over to the defense.

“Those decisions were left to the investigating agency,” he says, “and if they knew about (the cases), they obviously thought they weren’t significant.”

He says he doesn’t believe Gilmore or Blair did anything wrong.

“They’re both outstanding prosecutors and very ethical individuals,” he says, “and that’s evident in that they both were appointed to the bench.”

Other observers aren’t as certain. Daniel Coyne, an associate professor of clinical law at the Chicago-Kent College of Law, says that it’s not up to the prosecution to decide what is relevant for the defense.

“The case law is really clear that that’s not the prosecutor’s right to make that determination,” he says. “If it’s useful to the defendant, then a prudent prosecutor will turn over (the evidence) or make it available for inspection.

“If there was a decision to withhold information,” Coyne continues, “and the response as to why the information was withheld was that, ‘we didn’t determine it to be important,’ that may call into question the competency of the people who made that decision.”

It could also call into question their motives, says Richard Moran, a professor of sociology and criminology at Mount Holyoke College in Massachusetts. Moran recently completed a study of wrongful convictions in death penalty cases. He found that since the death penalty was reinstituted in the late 1970s, 81 of 123 exonerations were the result of what he calls “illegal prosecutions.”

“When there is a wrongful conviction, if that’s what the court ends up deciding, they’re not usually the result of good faith efforts,” he says, “but the result of a criminal or malicious act committed by one of the members of the court, either the police, the prosecutors or sometimes the judges. …

“You put a guy in jail for life because you’re convinced that he did it,” Moran continues. “You don’t want to share evidence that he might not have done it with the defense because you think he’s going to walk, so you misbehave so that he gets convicted. It’s the notion of framing; you can frame a guilty man, though you can also frame an innocent one. Most prosecutors who do this think that they are furthering justice by nailing the guy who they believe committed the crime. In terms of prosecutors you also have their won/lost records, so you have personal interest there, but the real outrageous notion is that people who are appointed by the court to uphold the law broke it to get convictions, and that’s not how it’s supposed to work.”

Gavaldon, the Fort Collins attorney, says it’s up to the courts to decide whether information in the Masters case was improperly withheld—“That’s why we have retrials,” he says—but he agrees with Moran’s sentiments.

“The criminal justice system is not an arena for hide and seek,” Gavaldon says. “What ensures that justice is served is that there is full disclosure on both sides, of all the evidence, so that those issues are decided by a jury on something as serious as a life sentence. That cannot happen when one side is hiding what could be evidence that someone did this other than this young man.”

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It remains to be seen if Masters will get a new trial, but defense attorneys Maria Liu and David Wymore are gaining momentum in that direction since beginning in 2003 a so-called 35 (c) proceeding, which seeks a post-conviction review of the trial. This is different than the appeals in which matters of evidentiary rules and the introduction of character evidence were reviewed and found to be sound; the hearings now being prepared for will determine if Masters deserves a new trial based on the allegations of prosecutorial misconduct and defense inadequacy.

Since 2003, his attorneys have succeeded in having the entire Eighth Judicial District removed from the case. Likewise, the Larimer County District Attorney’s Office has turned the case over to special prosecutors from Adams County after the defense filed a motion in January alleging a conflict of interest. Although a hearing on whether or not to grant a new trial will be held in Fort Collins, the case is now in the hands of the special prosecutors and a retired judge under special contract to hear motions in the case.

Recent allegations point to why the defense doesn’t want the locals involved in the case any further—in court documents filed in January, Masters’ lawyers claim that evidence from the victim was illegally sent by the District Attorney’s office to the CBI lab in Denver where they were subjected to destructive DNA testing. Masters had been granted a motion allowing his own DNA testing to look for evidence that someone else killed Hettrick, but before the evidence was turned over, the DA’s office sent the material to the lab for its own testing. This, Masters’ lawyers argue, amounts to theft and destruction of evidence.

“On or about November 20, 2006, the district attorney went to the courthouse and illegally took a number of trial exhibits from the court files for the purpose of trying (to) destroy or minimize any exculpatory evidence which might be obtained by the defense DNA testing scheduled to occur in the immediate future,” they wrote in a motion seeking to disqualify the DA’s office from the case. “The district attorney then took the evidence to the Colorado Bureau of Investigation where … CBI agents, at the direction of the district attorney, undertook to destroy any exculpatory DNA evidence by performing ‘procedures’ which they knew would be likely to have that effect.

“The district attorney did all of this without a single piece of paper being generated, contrary to all normal procedures of law enforcement and judicial agencies. … The district attorney thus demonstrated that it is infinitely more important to the district attorney to preserve the conviction of Tim Masters than it is to obey the rule of law, court orders, the Constitutions or its ethical obligations.”

The DNA evidence is crucial to the defense’s contention that Masters deserves a new trial. In an affidavit filed with the court, forensic investigator Barie Goetz—who worked for the CBI from 1981 to 2004 and is now employed by Masters’ defense team—outlined an entirely new scenario explaining Hettrick’s death that he believes can be proven by DNA. He believes the evidence will show that Hettrick was not murdered or mutilated where her body was found, but stabbed in the back while seated in a car. He says the evidence will also show that her mutilations were surgical in nature and occurred at “a suitably equipped location other than the scene at Landings” and that two people carried her body into the field and left in a vehicle.

If any of this turns out to be true, or even possible in the minds of jurors, it could lead to Masters’ acquittal. And an overturned murder conviction could wreak havoc in the Eighth Judicial District and those who tried the case the first time.

“If in fact he is innocent or he did not get a fair trial, that obviously reflects badly on the justice system,” says Pat Furman, who was a defense attorney for 20 years before his current position as professor of clinical law at the University of Colorado-Boulder. “If there was prosecutorial misconduct, it might rise to the level of something that the (state) Supreme Court looks at in terms of unethical behavior. A failure by the prosecution to provide exculpatory evidence is a significant violation. It’s a Constitutional violation, and it could result in sanctions against the prosecutors who violated that duty, personal sanctions by the Supreme Court. Prosecutors are held to the highest standard of all lawyers because they represent the government.”

Furman says sanctions could involve disbarment, which, in the case of Gilmore and Blair, would mean they could no longer serve as judges since district judges are required to be lawyers. There could also be criminal penalties, he says.

Repercussions could also be felt more widely, since an overturned verdict could lead to other appeals on the same grounds in different cases.

“I think that if the prosecutors are shown to have conspired against this guy or to have broken the law, any other defendants who were convicted by these guys will at least try to reopen their cases,” says Moran, the professor from Mount Holyoke College. “If you question the credibility of the judges when they were prosecutors, people might try to question their credibility when they were judges.

“Yes, it could lead to a lot of trouble and it could lead to a wholesale investigation of the justice system.”

Click here to read more from the Fort Collins weekly including additional information on the people involved in the nifonging of Masters and a preview of what's ahead in Master's quest for a new trial.