DENVER — Something very unusual happened in a Denver courtroom in June: Prosecutors dismissed a first-degree murder case after testimony had already started. For the first time during the trial, district attorneys realized a potential weapon had been in the victim's hand when the shooting happened.
In April 2023, the Denver District Attorney's Office filed a first-degree murder charge against a 23-year-old man. 9NEWS is not naming this defendant since he is no longer facing a criminal charge.
The case went to trial in June 2024, a little more than a year later.
The DA's office said prosecutors had reviewed the body camera video numerous times before trial. On the first day of testimony, the prosecutors realized that the victim in the case had been holding a tactical pen when he was shot by the defendant.
A tactical pen can be used as a self-defense tool, or it can even break a window.
As paramedics lifted the victim onto a gurney to be transported to the hospital, the DA's office said an officer on scene moved the object that had fallen from the victim's hand. The tactical pen was underneath several items that had been taken from the victim's pocket, according to the DA's office, and therefore the crime scene unit didn't photograph the pen.
"As soon as we saw this evidence, it became clear that we could not disprove self-defense beyond a reasonable doubt to the jury. At that point, we moved to dismiss the case," a statement from the District Attorney's Office said in part.
The Denver Police Department (DPD) said the officer who moved the pen was in his second week of field training following graduation.
"While we are not conducting an internal investigation or pursuing formal discipline against the officer, we do recognize this presents a training opportunity for the department. As such, the department is reviewing this case with the officer, and scenarios such as this will be incorporated into future training," a spokesperson for DPD said.
According to the department, the defendant did not provide a statement to investigators and did not indicate the victim had an object in his hand at the time of the shooting. He also did not assert a self-defense claim, DPD said.
9NEWS Legal Expert Scott Robinson said people who are arrested can't be penalized for staying quiet.
"Individuals being arrested are told they can remain silent, and they can’t be penalized for doing that," Robinson said. "And the jury can’t even be told that they remained silent. So, the bottom line is this individual did what he thought was best for him. And it doesn’t excuse the police for moving and not photographing the pen."
The defendant was represented by public defenders. In a statement, his attorneys said their client acted in self-defense to save himself and others from being violently attacked and possibly killed. They said he is frustrated it took until the evidence was presented at a trial for the charge to be dismissed, and he's looking forward to rebuilding his life.
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