60 | Judicial Chutes and Ladders

Chutes and Ladders is a board game for kids. The board is illustrated with playground equipment, but the game itself is a luck-based morality play: land on a good square and scramble up the ladder of life, land on a bad one and tumble down the chute. Game-maker Milton Bradley brought Chutes and Ladders to the U.S. in 1943, but it originated in India 4000 years ago.

To educate children in Hindu philosophy, the ancient version used ladders to represent virtues and snakes to represent vices. Transported in 1892 to Victorian England as Snakes and Ladders, the game’s ladders represented generosity, humility and faith; snakes were lust, anger, murder and theft. The American version is tamer. Good deeds by which you ascend the ladder include mowing the lawn or saving a cat from a tree; drawing graffiti or eating too many cookies will plunge you into the abyss.

In a juridical version of Chutes and Ladders, the Frye case moved up and down Colorado’s trial and appellate courts. The issue was Duane’s confession. Lozow argued it was hearsay within hearsay. Hearsay is an out-of-court statement that’s offered to prove the truth of what’s said. Duane’s confession was doubly complex because it was two statements: what he told his mother, Lolita; and what Lolita told his sister, Cherrie. It boiled down to how trustworthy Cherrie was.

At the eve of Duane’s September 2008 trial, Judge Pratt wrestled with the confession. Neither he nor DA Brackley had been present when Cherrie testified at the grand jury or the pretrial hearing, and Brackley didn’t offer to put Cherrie back on the stand. Was it because Brackley didn’t want to deal with a feisty octogenarian who confused some of her dates, or because he wanted to dump the case? Regardless, Pratt now had to rule on Cherrie’s credibility without seeing how she held up under cross. Unable to fathom why Duane would confess to his mother, or why she would tell her daughter, Pratt threw out the confession.

Now Brackley faced a stark decision. Go to trial without the confession, or petition the Colorado Supreme Court to reverse Pratt? The petition was a long shot, but Brackley claimed the confession was so important he couldn’t go to trial without it. He argued that neither Lolita nor Cherrie had a motive to lie, Cherrie’s trustworthiness had already been tested in court, and Pratt should have focused on whether there was any reason for a mother to falsely accuse her son. The petition was denied. Instead of going to trial without the confession, Brackley dismissed the case in order to file an appeal. Thus began a chutes-and-ladders trip through the higher courts. But whatever those courts decided, the DA’s decision ended the case.

Before Duane could be retried, a grand jury would have to indict him a third time. Given his and other witnesses’ ages, years of appeals promised a death knell to a new trial regardless of the appellate outcome. Worse, Brackley had tied any future DA’s hands forever. In 1973, Duane had been indicted without a confession and might well have been convicted if not for Jim Blake and the ginned-up fingerprints. Now Brackley had handed Lozow the argument that the DA himself admitted there was no case without Duane’s confession.

For four years, the Frye case limped through the appellate courts. Each day brought Duane a step closer to evading justice for good. And for those to whom Betty’s death mattered, time finally did run out. While appeals were pending, Dick Brickell and Betty’s sister Agnes, surrogate mother to her seven younger sisters and rock of the Orten clan, both died. Cherrie suffered a massive heart attack and was moved to a nursing home.

Brackley had left the Arapahoe County DA’s Office by the time the case reached the Colorado Court of Appeals,. In 2010, that court dismissed for lack of jurisdiction. The DA petitioned the Colorado Supreme Court for certiorari. In 2011, that court remanded the case to the Court of Appeals to decide whether Pratt properly threw out the confession.

In March 2012, thirty-nine years after Betty was murdered, seven years after the cold case was reignited, and four years after it began lurching its way through the appellate courts, with the indignity of an unpublished opinion the case was brought to a halt. Duane’s prosecution was over. He would never stand trial for his wife’s murder.

But justice works in funny ways.

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