A Denver police detective who testified about how uncommon it was to bring sexual assault charges prompted the Court of Appeals to toss a successful conviction for sexual assault.

“When probable cause to charge a defendant is not at issue, the prosecution may not present evidence of, or argument about, a pretrial screening process for bringing criminal charges,” wrote Judge Anthony J. Navarro in an opinion released on Thursday.

Prosecutors alleged that Carroll Hawkins sexually abused two minor boys, claims which came to light after Hawkins’ girlfriend discovered his journals alluding to such conduct. A forensic interview of the children in January 2014 further corroborated Hawkins’ acts.

Hawkins received six charges for sexual assault on a child, and a Denver jury found him guilty on all of them. He received 24 years to life in prison, but appealed, citing the testimony of Detective Umar Shabazz.

Shabazz was the first witness for the prosecution, and a detective for 10 years who worked on missing and exploited persons cases. Under examination from the prosecutor, Shabazz described the process for initiating child sexual assault cases: a patrol officer or social services agency most often forwards findings to a detective.

Shabazz then explained, “It is up to us, the detective, whether or not we have probable cause to arrest. If it is a case that we don’t develop probable cause then we meet with a member of the district attorney[‘s office] to discuss that and at which time the case gets refused and no charges.”

Around that time in the testimony, Hawkins’s lawyer objected, arguing it was irrelevant “whether a cop or DA thinks they ought to file a case.” Denver District Judge Sheila A. Rappaport overruled the objection, saying it was “helpful for the jury to see how cases get processed.”

Navarro, writing for the three-member appeals panel, explained that improper references to the process for bringing criminal charges may imply that only guilty people end up being charged, and therefore the defendant is guilty.

While prosecutors insisted Shabazz’s testimony intended to show the thoroughness of the investigation, the panel instead focused on what the jury heard: that the detective investigated over 100 cases, that he was not expected to arrest someone every time and that he worked on “many, many cases” with no charges. 

“Considered in combination, the detective’s statements implied that the police and the prosecution had screened this case for sufficient evidence, decided that (unlike in many other cases) the evidence in this case was strong enough to justify criminal charges, and therefore the police and prosecution believed Hawkins was guilty,” wrote Navarro.

The appeals panel rejected prosecutors’ argument that the exchange with Shabazz was so brief as to have no likely effect on the verdict, with the judges pointing out it was the first evidence the jury heard. Combined with their belief that the evidence against Hawkins was “not overwhelming,” the panel determined the convictions warranted reversal and ordered a new trial.

A spokesperson for Denver District Attorney Beth McCann’s office said she was reviewing the ruling and had not yet decided whether to retry Hawkins.

According to The Blue Bench, a sexual assault prevention and services nonprofit, 77% of assaults go unreported and 99% of perpetrators do not go to prison. State data for 2019 indicate that only 30% of the 6,714 sex offense cases were resolved.

In February of last year, three researchers from Massachusetts, supported by funding from the U.S. Department of Justice, interviewed 24 prosecutors from six jurisdictions to understand decision-making in sexual assault cases.

“Although prosecutors stated that they were not assessed based on their conviction rates, they emphasized the need to determine and take forward those cases that will be most likely to reach a guilty verdict. The prosecutors were clear that many cases could not be taken forward for a variety of reasons,” such as victim credibility, the researchers wrote. However, the interviewees “also stressed the need they felt to reduce the number of cases that a unit takes forward to a manageable level given the resources they had available, problems of prosecutor burnout, and the likelihood of conviction.”

The case is People v. Hawkins.