A Lincoln County judge improperly denied an incarcerated man the opportunity to justify his possession of contraband weapons behind bars, Colorado’s second-highest court ruled last week in reversing the conviction.

Colorado law provides for a “choice-of-evils” defense. A person can avoid conviction if they show they were facing imminent harm and engaged in criminal conduct as an emergency measure, without another path available to avoid the harm.

Edward A. Clutts was incarcerated at Limon Correctional Facility for a sex offense when he disclosed to an employee that he had created his own weapons – bars of soap inside socks. Clutts alleged the “White boys,” potentially meaning White supremacist prison gangs, were targeting sex offenders. His cellmate was reportedly ordered to “take care of” Clutts.

Clutts said he kept the makeshift weapons for his own protection. Instead, prosecutors charged him with felony possession of contraband. A jury convicted Clutts and he received four additional years in prison.

Clutts had attempted to invoke the choice-of-evils defense, noting sex offenders are often the target of violence.

“During his time in prison, he has been harassed and assaulted because of his sex offender status. He has also informed prison guards to no avail,” wrote Deputy State Public Defender Matt Mulch. “Mr. Clutts has virtually no rights and essentially no means to protect himself.”

Case: People v. Clutts

Decided: August 10, 2023

Jurisdiction: Lincoln County

Ruling: 3-0

Judges: John Daniel Dailey (author)

Christina F. Gomez

Alex J. Martinez

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District Court Judge Cynthia Mares declined to let a jury evaluate the choice-of-evils defense. She believed Clutts failed to show how possessing the makeshift weapons was justified, as there was no clear harm facing Clutts.

“He does not assert a specific impending occurrence of imminent danger or some other act of violence,” Mares wrote. “Instead, the defendant attempts to assert a generalized concern based on his status as a sex offender in a DOC facility, implying the possibility that he may encounter future difficulties.”

Clutts appealed, pointing to testimony that alleged prison guards intentionally put Clutts in danger of gang attacks. The Colorado Attorney General’s Office insisted that Clutts had not pursued other, non-criminal means of avoiding harm, and that his concerns only related to “normal conditions” of confinement.

“Defendant’s allegations amounted to little more than amorphous threats that are always present in a prison setting,” wrote Senior Assistant Attorney General William G. Kozeliski.

A three-judge panel of the Court of Appeals agreed with Clutts. In analyzing whether any evidence supported the choice-of-evils defense, Mares had brushed aside the allegation that Clutts’ cellmate had specific orders from the “White boys” to harm Clutts.

“Viewing that evidence in the light most favorable to Clutts,” wrote Judge John Daniel Dailey in the Aug. 10 opinion, “a serious threat to Clutts’s well-being was, then, not only present but ongoing.”

Although Clutts did not fill out the form designated for prisoners who are worried about safety threats, the panel noted Clutts did inform an employee that he had created weapons to protect himself. By essentially turning himself in, the panel believed Clutts had satisfied the requirement to pursue alternatives to criminal conduct.

“In our view, a jury could well find that Clutts initiated a viable and reasonable course of action by notifying prison authorities of his predicament,” Dailey wrote.

The panel ordered a new trial.

The case is People v. Clutts.