BRAUCHLER: Lima-Marin pardon violated Colorado law and victim sensibilities

The governor may exercise his discretion to pardon whomever he wants for whatever reasons he deems best, but only as the law permits. The law has requirements. The governor failed to meet those requirements

Prior to Chief Judge Samour’s order on May 16, 2017 — at a time when Rene Lima-Marin still faced the remainder of a 98-year sentence, and prior to the revelation of an ICE hold — the Governor’s Office provided us with two documents from Lima-Marin: a 12-page Application for Commutation of Sentence, and a nine-page letter written by Lima-Marin.

Both documents reference seeking a commutation of sentence (a shortening of his sentence).

This is not unusual or unexpected, because at the time, Lima-Marin was focused on having his sentence shortened and getting out of prison.

There was no need for a pardon.

At the top of the application, which is obtained from the governor’s website, the very first item requiring input from an applicant is “Type of Clemency Desired.”

There are only two options listed under “Type of Clemency Desired.” One is “Commutation of Sentence.” Lima-Marin marked that option. The other option immediately below it is “Pardon: Felony: Seven years must have elapsed since completion of sentence.”

Lima-Marin did not mark that option. By the terms of that option, Lima-Marin was not eligible to request it. Although the Governor’s Office correctly points out that it has the ability to abandon or waive its rules in this area, there is no indication of that on the application and Lima-Marin would have no reason to believe the state rule would not apply to him.

We relied on the type of clemency chosen by the applicant.

Within the application, there is a Section “V: Character Certificate (For Commutation of Sentence Only).” That section appears to be filled out by the Warden of the DOC facility, in which Lima-Marin was incarcerated at the time he filled out the application.

Throughout Lima-Marin’s nine-page letter to the governor, he never references a “pardon” or anything like a pardon. The letter contains several references to his desire to be released from prison and to reunite with his family.

Most telling is something he wrote on the last page of his letter: “I understand the position you are in. You have to decide whether to put a convicted felon back on the streets you have been elected to protect, and determine whether the time served has been sufficient.”

It is clear from this sentence that he is not seeking a pardon of his felony conviction, but release from prison.

Based upon those two documents from Lima-Marin (the only ones provided by the Governor’s Office before we submitted our response), we had the victims notified of Lima-Marin’s request for a commutation of his sentence, not a pardon. On Monday, May 15, 2017, we submitted a response based entirely on the request for a commutation of sentence and the victim’s input regarding a commutation of sentence. We did not ask the governor to deny Lima-Marin’s request.

The next day, on May 16, 2017, AFTER we submitted our response to the application for a commutation of sentence, Chief Judge Samour issued his order releasing Lima-Marin from prison, making the commutation of sentence moot.

Later that same day, Lima- Marin’s release was placed on hold due to an ICE detainer, which had never been referenced or discussed previously.

On Friday, May 19, 2017, the governor granted Lima-Marin a “Full and Unconditional Pardon,” wiping away his felony convictions and restoring, among other things, his right to purchase firearms.

No application for a pardon was ever sent to our office as required by law. The Governor’s Office made no reasonable efforts to contact the original sentencing judge for his input, as is required by law. The victims were never consulted about their positions on a pardon or whether the guy who victimized them at gunpoint should be permitted again to purchase and possess firearms, as is the right thing to do. We would have done that, had we been told Lima-Marin was seeking a pardon.

We did not.

To be clear, in light of Chief Judge Samour’s order of May 16, I believe Lima-Marin should be released from custody and reunited with his family. I do not believe he should face deportation to Cuba, a country he has not been to since age two. I did not oppose the commutation of his sentence. My opinion on these matters — like the governor’s — does not defeat federal law, nor justify trying to skirt it.

The correct and legal course of action here is — as I have said publicly — for Colorado’s congressional delegation to use their influence.

I do not believe that Lima- Marin deserves to skip over the clemency and pardon procedures dozens of others have endured.

I do not believe that Lima- Marin should jump to the front of a long line of convicted felons who have done all that is asked of them by the law and the governor’s procedures. My opinion on these matters has no influence with the governor, in part, because he never asked for my input as the law required him to. The governor may exercise his discretion to pardon whomever he wants for whatever reasons he deems best, but only as the law permits. The law has requirements. The governor failed to meet those requirements.

There is a right way to do this. This was not it.

George Brauchler is District Attorney for the 18th Judicial District and seeking the Republican nomination for governor in 2018.