The Hartman Report on the District Attorney's Report

by Pat Hartman

The official document:

District Attorney Kenneth T. Buck's letter to Chief Judge James H. Hiatt

The reaction:

In January of 2008, after the conviction of Tim Masters for the murder of Peggy Hettrick had been vacated, District Attorney Ken Buck of Weld County was assigned as special prosecutor to determine if any criminal laws were violated by Lt. James Broderick of the Fort Collins Police Department. A mere six months later, to the utter astonishment of absolutely no-one, Buck’s report concludes that Broderick won’t have any criminal charges filed against him. Which is not quite the same as not doing anything wrong. On July 8, 2008, DA Buck’s report was released in the form of an 11-page letter, and on the 9th he held a press conference to further elucidate.

Buck notes that his mandate was limited to finding out if Broderick broke any laws, and uses the word again to say, “During my limited investigation several flaws were uncovered….” One might almost think he’s implying that, if he’d been able to investigate more fully, and not been limited, his findings might have been more substantial. But that’s probably wishful thinking on my part.

The Not Fully Informative Timeline

The letter/report includes an abbreviated timeline of the case. Of course, not every little detail of the excruciatingly long history of the case could be included here, but there are a few things it would have been useful to remind us of. For instance, the timeline notes that on February 12, 1987, the day after Peggy Hettrick’s body was found, Tim Masters was interviewed for 6 hours. This was also the day when a conversation between Tim and his father Clyde Masters was recorded, and also the day Tim was given a lie-detector test with inconclusive results, though that isn’t mentioned here.

It also doesn’t mention how, on the very next day, Broderick tells the FBI all about his favorite suspect, Tim Masters. Unfortunately, the Fort Collins Police Department doesn’t have a damn thing on the kid in the way of physical evidence, eyewitness testimony, confession, or any other thing that would make an arrest stick. Supposedly, the 15-year-old boy is so clever and sly, he’s managed to totally outwit the FCPD, despite the fact that they’ve been working on the case for two entire days.

The FBI advises patience: and here, two days after Peggy Hettrick’s murder, the anniversary surveillance is born. This is not a guess, it’s according to testimony in the recent hearings. In this and subsequent conversations with the FBI, Broderick is instructed in how to set up, conduct, and interpret any results of this fantastic, costly, and counterproductive plan. Already, instead of trying to catch the murderer immediately, he is focused on how to catch Tim Masters a year in the future. This alone should be enough to send Broderick to prison. That’s as far as we’ll go right now with the conspiracy theory. It’s a whole separate, and huge, topic.

But wait – it gets better. Broderick asks the FBI to do a profile. Here’s the problem. With them, the whole concept of making a “profile” centers around the fact that there is no suspect. They start with a blank slate, and just make it up as they go along, predicting what kind of person will turn out to have done the crime. Well, Broderick has already provided to them all of the particulars of Tim Masters, which shows a baffling ignorance of FBI procedure, to say the least. And there’s nothing at all in Buck’s report about how, years later, when Tim was finally arrested, the warrant was partially based on the profile that never existed.

The timeline skips ahead to June 15, 1987 when Broderick, having been promoted, was reassigned to patrol and presumably, was off the Masters case. Then, it says in late 1987 the FCPD received suggestions for the anniversary surveillance. This is very oversimplified, as we’ve just seen, because the anniversary surveillance plan had actually been around since Day 3 of the investigation.

And of course in the meantime there had been the whole Donald Long saga. Long was and still is a viable suspect for the Peggy Hettrick murder, but that’s a whole separate subject also, and one not mentioned in the DA’s report.

Buck’s timeline mentions the February 11, 1988 anniversary surveillance, also in an oversimplified fashion, since that surveillance actually lasted a week and covered several locations. The report also neglects to mention that the “surveillance” included a deliberate psychological warfare-type provocation, designed to mess with the head of this teenager by capitalizing on the fact that it was also the anniversary of his mother’s death. Yes, they planted a copy of her obituary where Tim would find it. Also, the report makes no mention of a news story fabricated by the police and foisted on an unsuspecting journalism intern. It also neglects to mention a police document written on February 8, 1988, stating that if the anniversary surveillance had no result, they would close the books on this case. But they didn’t. Some obsessed mind or minds were intent on nailing Tim Masters with this one.

The Changing of the Guard

One of DA Buck’s conclusions is that the multiple errors in the Masters case were compounded by multiple changes in case leadership. Let’s take a look at this. It started out with Sheri Wagner and Jack Taylor as co-lead investigators, which they presumably still were through June of 1991 when Linda Wheeler-Holloway took over. That wasn’t such an abrupt departure. Wheeler-Holloway had been the first officer on the scene at Peggy Hettrick’s murder site, and then was assigned to deal with the victim’s family. She knew all about the case. After the 1992 Philadelphia excursion, during which Wheeler-Holloway refused to arrest Masters because he was the wrong man, the Hettrick murder went to cold case status in 1993.

In 1995 and ‘96, Officer Marsha Reed got busy pulling together elements of the Masters case, but there doesn’t seem to be any mention of her, ever, as lead. She apparently forgot to file a report from a doctor, that would have been exculpatory for Tim, but that was just as one of the officers on the case, and Buck doesn’t mention her part in it at all. After that, the next lead investigator was Jim Broderick, who was also familiar with the case from the beginning, and indeed knew more than too much about it, since he invented most of it.

This doesn’t really add up to a whole lot of leadership change, when you consider the many years the case stretched over. The various leaders were all familiar with the case. In fact, nobody in the entire FCPD was unfamiliar with it, and certainly, none of the lead investigators came into it a virgin. Besides, there was plenty of continuity in the leadership. At any rate, it should not matter if there had been even more changes in leadership. That’s what records and briefings are for. In a hospital, a patient’s chart is a detailed record of everything that happens, readable by each subsequent nurse who cares for the patient. When new nurses come on duty, a verbal report is given by the off-going shift to the oncoming shift. Would it be acceptable for a hospital to claim that nursing changes of shift were responsible for a patient’s death? Geez, let’s hope not.

More weird stuff

So in July of 1992, an arrest warrant was obtained. This report doesn’t mention that the warrant was based on a story from an informant about how Tim supposedly had special knowledge about the crime that, actually, everybody in town knew. Anyhow, Linda Wheeler-Holloway had the good sense not to arrest him at that time.

Then, in 1995, the Richard Hammond mess happened. He was the eye doctor who should have been the prime suspect in the Peggy Hettrick murder. Broderick was instrumental in destroying the massive amount of evidence gathered on Hammond, and Reed granted immunity to Hammond’s wife, who in some circles is considered a pretty good accomplice suspect.

On April 20, 2007, Buck’s timeline says, “The 17th Judicial District Attorney was appointed by the court as special prosecutor.” This, as we will recall, happened because the prosecution had to recuse itself on account of a conflict of interest – only one of the messy details in this entirely SNAFU’d case.

The allegations against Broderick

One of the most shameful things about this is that there were only three allegations against Broderick which DA Buck’s office was tasked with investigating. And, for symmetry, there are three things that office had to decide: Was a crime committed? Did the suspect (in this case, Broderick) commit the crime, if indeed there was one? And – here’s the most important part – is there a “reasonable likelihood of conviction at trial.”?

At his press conference after the 11-page letter was issued, Buck was asked if the standard is different with civilians and police. Buck says, yes, it is. “Our standard,” he said, is “reasonable probability of conviction.” Which isn’t quite the same as answering the question. Doesn’t that hold true with any prosecutor, in deciding whether to bring charges against anyone, civilian or police? Because if they know they can’t get a conviction, it’s a waste of taxpayers’ money and everybody’s time, to charge the person.

The tape and transcript

So, the first allegation is that Broderick recorded the conversation between Tim and his father, the day after Peggy Hettrick’s murder, in violation of the anti-eavesdropping rules. Well, the first thing Buck points out is that the statute of limitations runs out in three years, so in order to stick, a charge would need to have been made before February 1990. So, obviously, there would be no probability of conviction. When it’s a citizen, they call this “getting off on a technicality,” and it’s quite lame. For cops, there shouldn’t even be a statute of limitations. They have so much latitude and so much power, and get away with so much, there ought to be a counterbalance – like, for instance, a requirement to adhere to higher ethical standards than your average mug on the street. Yes, it’s only wishful thinking.

But Buck goes on to say he doesn’t believe that Broderick, personally, engaged in eavesdropping, as defined by law. Because, supposedly, Broderick wasn’t involved in the decision to record the supposedly private conversation between father and son, and didn’t know whether Clyde Masters verbally consented or not. He says he had nothing to do with it, except that his own interrogation of Masters was pre-empted to accommodate the father-son talk.

This recording is problematic for several reasons, the foremost being consent. In 1996, Clyde Masters died, removing from the equation not only Tim’s sole alibi witness, but the only one who could say whether verbal permission was given to record his conversation with his son in the police station back in 1987. Co-lead investigator Wagner says Sgt. Martinez informed Clyde Masters that the conversation would be recorded. Sgt. Martinez says not. It’s a classic he-said-she-said standoff. And, as Buck tells us, there is no written record that Clyde Masters consented on behalf of himself or his son. The DA gives the police a bit of a scolding for this.

Another problem, and here’s where it gets real complicated, is that when Tim went on trial, the father/son portion of the immediate post-murder questioning was left out of the transcript provided to Tim’s defense attorneys. Apparently, they either were given a copy of the tape, or were told they could have a copy if they wanted it. FCPD was betting that the original defense lawyers would not listen to the tape, even if it were possible for them to do so. If the lawyers were doing their job right, they should have listened to it, if indeed it was turned over to them or made available upon request.

On the other hand, ought we to blame the lawyers, who are officers of the court, for trusting the honesty of government officials? Shouldn’t defense attorneys be naturally entitled to assume that the transcript of an interview turned over by the police, will be accurate and complete, and match up with the tape? I mean, shouldn’t they?

Buck says, “…Defense Counsel received notice of the recorded conversation, and Lt. Broderick has a plausible explanation for creating a second transcript.” This seems to mean that a complete transcript already existed, and Broderick himself generated a second, censored and redacted version of the transcript – one that omitted the father/son conversation. And what, pray tell, was his plausible explanation for doing that? It’s not here. Unless this is supposed to be it:

According to Buck’s report, Broderick was listening to the tape and reading along in the transcript, and when he heard the father/son segment, had doubts as to whether it had been recorded with permission. So he called prosecutor Terry Gilmore. “After that conversation Lt. Broderick believed that any information that was of questionable admissibility should not be included….” See what he’s saying? He knew this would be inadmissible because it was obtained illegally – the fruit of the poison tree – and thus the inclusion of that part of the tape in the written transcript would threaten the whole case! Not being a lawyer, I don’t know if it would have been cause to declare a mistrial, or exactly how it would have happened; whether the worst thing would be that it was exculpatory evidence, or whether the worst thing would be that evidence was illegally obtained – either way, there’s no doubt that Broderick was aware that knowledge of this bit of information could lose his case. A bit of information which, had it been known, could have gotten his police department convicted of eavesdropping, if not for that tricky little statute of limitations. If that’s not concealing evidence, I don’t know what is. “This evidence may have been relevant at trial…” Buck says. Yes, it most certainly would have been. And the question is still open – if not Broderick, what individual was responsible for leaving it out?

Buck’s report says, “Lt. Broderick now knows that the transcript with the full conversation between Tim and Clyde Masters was not given to the defense and was stored “off site” from the police department.” Where, exactly, was “off site”? Why? Why don’t we get to know where? The report says, “A tape of Mr. Masters’ interview, including the conversation with his father, was made available to defense attorneys as part of discovery before trial.” What exactly does that mean? Does “made available” mean that the defense team could have had it, if they had known it was important to ask for it? For instance, if they had known that the tape didn’t match the interview transcript?

Okay, the upshot is, according to this report, “Lt. Broderick did not invite Clyde Masters to talk to his son and Lt. Broderick was not responsible for receiving permission to record the conversation.” But somebody did those things. Let’s go after whoever was responsible. Just because one cop had the inspiration to do it, and another one suggested how to do it, and another one invited Clyde Masters into the room and another one opened the door and another one closed the door and another one forgot to turn off the tape recorder….. Spreading out the doing of it doesn’t make it any less wrong. Somebody was responsible – but, thanks to that darn statute of limitations, it doesn’t matter anyway.

The second allegation

Okay, moving on to Allegation #2, namely that Broderick committed perjury by “misstating his involvement in the Hettrick homicide investigation.” The statute of limitations would of course apply again, but there are exceptions: the accused has to be prosecuted within three years of when the act of perjury is discovered, not committed. So, supposedly, Broderick could still be accused and convicted of this. Theoretically, he’s still vulnerable on this front, until December 17, 2010. That’s the good news.

The bad news is, it ain’t gonna happen. What Broderick said in court was that he had nothing to do with the Masters case between interviewing Tim in 1987, and being asked to assist in 1992. However - Masters’s post-conviction defense team says Broderick was involved at least three times between those dates.

First, there was a letter dated April 30, 1987, to FBI Behavioral Sciences agent Joe Kohout, and Roy Hazelwood, who was retired from the FBI. When Hazelwood was active duty FBI, Broderick had tried to involve him in the case, but he wasn’t interested. This 1987 letter seems to have been Broderick’s effort at trying once more to snag the prestigious profiler Hazelwood. Buck doesn’t mention it, but that letter wasn’t given to defense as discovery in the original trial. It was only exposed during the 2007-08 hearings, during which half a day was spent trying to figure out what the “Kohout memo” was (May 13, 1987) and what it concerned. This could have been easily known, if the April 30 letter had been on the table at the time.

But no. It was one of the documents Broderick held onto throughout most of the duration of the hearings, only giving it up at the last minute after having been issued a subpoena, and even then, not immediately. It was also not part of the paperwork forwarded to Dr. Reid Meloy, who later became Broderick’s own expert witness, or to Roy Hazelwood, who he hoped would become his expert witness. What do you do with a guy who withholds stuff not only from the other team, but from his own side as well? Anyway, the “Kohout memo” seems to have concerned officer Jack Taylor’s conversation with Kohout, who had been primed by Broderick’s letter. There seems to have been some input from Hazelwood, too, though whether it was relayed through Kohout or whether Taylor talked with him separately is not clear. At any rate, Broderick’s April 30, 1987 letter certainly negates any claim that he had nothing to do with the Masters case at that time. Being the FCPD liaison with the FBI constitutes involvement.

Second indication of Broderick’s involvement during that time period: February 4, 1988, just four days before the beginning of the week-long anniversary surveillance there’s an official note of “Broderick’s contact with Tim last week.” What was that all about? Supposedly, Broderick, on patrol, just happened to coincidentally be nearby when Clyde Masters called the police about some kind of harassment. So naturally, Broderick hurried right over. It was a total cosmic accident, had nothing to do with Broderick’s determination to nail Tim Masters.

At of the time of the hearings, less that a year ago, no paperwork documentation of this incident had been located. How do we know that some member of the police department didn’t do the harassment? Look at the other things they did in conjunction with the anniversary surveillance. They followed Tim around all week to video arcades and fast-food joints, and called up his guidance counselor at school to ask if he was acting strange. They baited Tim by leaving his mother’s obituary on his friend’s car. To make sure that Clyde and/or Tim would see their planted, lying, fraudulent newspaper story, the FCPD had been delivering the Fort Collins Coloradoan to their home even though they didn’t subscribe. Maybe that was the harassment that Clyde Masters phoned in about. Maybe he complained about some overage paperboy sneaking around, leaving newspapers that he never asked for. It would not be one bit surprising if some kind of annoyance was set up, just to give Broderick an excuse to stop by.

Third: And then there’s the traffic stop of a suspicious character that Broderick made, during the anniversary surveillance – again, just doing his job, no special connection to the whole Masters thing, of course. We don’t have the exact date on which Broderick stopped and questioned Alfredo Denogean and wrote him a ticket for some kind of traffic violation. But on May 2, after the anniversary surveillance was over and the report on it had been submitted, Officers Wagner and Taylor interviewed a Donnegan or Dunnegan – or, quite possibly, Denogean. Why did they go back to him? What was that all about? Just another of dozens of unanswered questions.

The DA’s office interviewed Lt. Hal Dean about whether Broderick had been involved in the anniversary surveillance. It says here, “Lt. Dean stated that if surveillance officers needed a suspicious person checked out, they would have called the patrol division to have a marked unit contact the person.” Of course they would! The detectives in the surveillance trailer, when this guy knocked on the trailer door, presumably to find out if it was inhabited, so he could burglarize it – the surveillance guys aren’t going to come leaping out and blow their cover. Getting a uniform to tackle the intruder is standard operating procedure. This testimony doesn’t prove anything one way or the other.

We’re losing sight of something very important here – that in Buck’s words, “The vast majority of the anniversary surveillance material was not turned over to the defense in discovery.” The negative results of the anniversary surveillance would have been exculpatory, so this was definitely incomplete discovery – but not, we are told, Broderick’s doing. Whose decision was it, then? Never mind the traffic stop – was Broderick responsible for Tim’s defense team not getting this material? Wouldn’t you like to know? I sure would. Too bad, it’s not one of the questions within the scope of this particular investigation.

Buck says “Lt. Broderick’s involvement in the Hettrick homicide investigation between 1987 and 1992 is of little consequence…” Au contraire! It shows Broderick’s continuing obsession, the vendetta, the single-minded devotion to nailing Tim Masters, that is very consequential indeed.

Third allegation

Was Broderick guilty of “testifying falsely at the Masters trial about shoe print evidence found at the Hettrick homicide scene”? There’s way more to this shoe print mess than is suggested in this document. It’s a whole separate subject. But this paragraph of Buck’s report is precious:

“The crime-scene investigators failed to document the location of each individual shoe print, and failed to create a universal marker system for the crime scene. As a result, the casting impressions and shoe print photographs could not be linked to a particular location in the crime scene.” It has been suggested that the state of technology in 1987 was responsible for the muddle with the shoeprints. This is the kind of thing that makes the onlooker want to groan “Oh, please, give me a freakin’ break.” Even Brother Cadfael, the fictitious 12th-century crime-solving monk, knew enough to take careful note of where footprints were found and in what direction they were oriented.

DA Buck does say, “In my opinion, Lt. Broderick should have known that his testimony was incomplete” in regard to the shoe prints. “He was incomplete in his testimony.” Well, there you have it. Isn’t “the whole truth” part of the oath a witness swears with his hand on the Bible? Seems like that should be enough for a perjury indictment, on its own. “Somebody else was there…that would have been important evidence…” This is the kind of statement for which the response, “No shit, Sherlock!” was coined. Understatement of the decade.

Buck goes on to say, “I do not believe that there is a reasonable likelihood of convicting Lt. Broderick of Perjury at trial.” In other words, he didn’t do anything wrong, because we don’t really have a good chance of convicting him. Wow. Is that how it works? It seems not to have worked that way in Masters’s case. Broderick knew there wasn’t a good chance of convicting Tim Masters. But rather than concluding that Masters didn’t do anything wrong, he set out to invent enough bull, in the form of the fake profile and all his amateur forensic psychology suppositions, and by buying Reid Meloy’s “professional” forensic psychology theories, to create the likelihood that Masters did the murder.

This wrapup of Broderick’s involvement is inadequate and unsatisfactory. It’s like watching an elephant be pregnant for months and then give birth to a mouse. Now there’s supposed to be an internal FCPD investigation, which has been held in abeyance until the delivery of DA Buck’s report. With this tepid whitewash as precedent, it’s not difficult to foresee the results of that investigation.