One member of Colorado’s second-highest court criticized a Denver prosecutor on Thursday for repeatedly comparing a defendant’s actions to the television show “Dexter” during a jury trial.

A three-judge panel for the Court of Appeals declined to order a new murder trial for defendant Joseph Alden Corey. The majority conceded the prosecutor’s references to a show about a serial killer were “inartful,” but Judge Timothy J. Schutz went a step further, separately warning district attorneys’ offices about their choices to push the boundaries of fairness and professionalism.

“In the end, the criminal justice system is dependent upon the unflinching professionalism of prosecutors. Across this state, many prosecutors consistently meet that challenge,” he wrote. “But most is not sufficient; we need all prosecutors to assume that mantle.”

The office of Denver District Attorney Beth McCann, in response to questions from Colorado Politics, said it agreed with the Court of Appeals’ ultimate decision to uphold Corey’s conviction.

Mary Claire Mulligan, a longtime defense attorney, believed Schutz had raised legitimate concerns about prosecutors’ adherence to their professional duties, including the obligation to seek justice above all else.

“Yet, what is often celebrated by prosecutors in the press is a conviction and lengthy sentence. This, I believe, is an offshoot of the ‘tough on crime’ mentality this country has harbored for many years,” she said.

In the underlying case, jurors convicted Corey in 2022 of shooting and killing Wayne Johnson. Although prosecutors charged Corey with first-degree murder, the jury returned a verdict on the lesser offense of second-degree murder.

At the time of the shooting, Johnson visited his girlfriend’s home in the early morning hours, despite a restraining order. Corey, who lived in the garage, was sleeping in a van outside that night. Upon seeing Johnson being turned away from the door, Corey exited the van with a gun.

The defense maintained at trial that Corey shot Johnson to defend the occupants of the home and himself, after Johnson allegedly became aggressive. The prosecution painted Corey as the aggressor.

During jury selection, prosecutor Lara Mullin spoke to the jury pool about “Dexter,” a crime drama in which the main character, Dexter Morgan, lives a secret life as a serial killer. His victims were unsavory people who own misdeeds were inadequately punished by the justice system.

Mullin asked numerous jurors whether they believed Dexter’s vigilante approach to justice was acceptable. They responded it was not, citing various complications:

• “He’s not going to be right 100% of the time, even if he thinks he is”

• “It leads to other unintended consequences that, like, harm people close to him and that he cares about”

• “We’d be a lawless society. … I don’t think it would function”

• “I think you follow the process that we’re supposed to, or we’re all criminals”

Mullin continued to reference the theme of vigilantism while cross-examining Corey and in closing arguments. She suggested Corey’s actions in shooting Johnson were an example of vigilantes taking it upon themselves to “execute other citizens based on their belief that they have done something wrong.”

“Recall what several of you said during jury selection. The greatest danger of all is that the person that has taken it upon themselves to do this may have been wrong, and that is exactly what happened in this case,” Mullin concluded.

Although the defense did not object to the “Dexter” references at the time, Corey’s lawyer on appeal argued Mullin committed misconduct that denied Corey a fair trial.

“Mr. Corey is not a vigilante serial killer, and he does not hunt down murderers who have not been adequately punished by the justice system due to corruption or legal technicalities,” wrote public defender Katherine Brien. “The theory of defense at trial was that Corey originally acted in defense of others (whom he loved and resided with) and then in self-defense when he shot and killed Johnson.”

The Court of Appeals’ majority did not believe Mullin committed misconduct. Judge Ted C. Tow III, writing for himself and Judge Neeti V. Pawar, concluded Mullin never argued to jurors that Corey was a serial killer like Dexter. Instead, she only used the show as “an example to explore the general concept of vigilantism” during jury selection.

“And, although inartful with her general references to Dexter,” Tow added in the Dec. 26 opinion, Mullin had made an “attempt to uncover potential juror biases in that area.”

Schutz agreed with the outcome of the appeal, as he felt the evidence of Corey’s guilt outweighed any harm Mullin’s comments may have inflicted on the fairness of the trial. However, unlike the majority, he believed Mullin’s prolonged “Dexter” analogy amounted to misconduct because it was irrelevant to the central issue in the case of self-defense.

“To the contrary, the use of the Dexter analogy was a carefully scripted effort to compare the actions of Corey to that of a vigilante serial killer,” he wrote. “I reject this effort to excuse the prosecutor’s misconduct.”

Schutz concluded by airing his concerns about the “all too frequent use of similar inflammatory rhetorical devices by prosecutors” — and the limited opportunity for the Court of Appeals to intervene. Consequently, he pleaded with district attorneys’ offices to self-regulate.

“The effective fulfillment of this essential role (of prosecutors) requires a significant measure of self-restraint,” he continued. Because in instances where prosecutors push too far, the lenient standards on appeal “do not provide a reliable means of deterrence against such excesses.”

The case is People v. Corey.