Suit is against Payne, two others and DA’s office

ALAMOSA — Robert Willett, former district attorney for the San Luis Valley, has filed a federal lawsuit against his successor, disbarred DA Alonzo Payne, for “malicious prosecution” and violation of Willett’s constitutional right to freedom of speech. The lawsuit individually names Payne, former Assistant DA Alex Raines and an investigator working in the 12th Judicial DA’s Office plus the DA’s office.

In the lawsuit, filed this week in the United States District Court for the District of Colorado, Willett is suing for $5 million for damages, including damages for emotional distress, humiliation, loss of enjoyment of life, loss of future business earnings, and other pain and suffering.

The history of Willett and Payne

As was reported for over a year and a half in the Valley Courier, Willett and Payne first squared off in 2020 when Payne challenged Willett, the incumbent, in the Democratic primary for the office of District Attorney. In what was considered an upset, Payne won the race and, with no Republican opponent on the ballot, was sworn into office in early January of 2021.

In the months that followed, events began to unfold that were indicative of what was to come. The timing of those events plays a role in the lawsuit.

About six months after being sworn in, Payne’s conduct in office was drawing increasing criticism from the public due to — as was later confirmed — a repeated failure to abide by the Colorado Victims Rights Act (VRA) plus a significant and growing backlog of violent and serious cases and ongoing failures to act on violent and serious cases given to him by local law enforcement for potential prosecution.

In the fall of 2021, a grassroots movement to recall Payne was started, led by Lani Welch, a victim of crime who had dealt with Payne’s office during the court proceedings for her case. By the beginning of 2022, Payne’s office was already answering to Colorado’s Department of Criminal Justice for alleged violations of the VRA.

According to court documents filed in the suit, on or about Jan. 19, 2022, Payne directed the investigator working for his office to investigate Willett for Christmas bonuses he had given to employees and himself prior to leaving office.

In mid-February, Willett — who had been working as a Deputy DA in the 4th Judicial District since leaving office — submitted a Letter to the Editor that was published in the Feb. 19, 2022, edition of the Valley Courier. In his letter, Willett criticized then-DA Payne for his conduct in office and called for him to resign.

On March 2, 2022, Alamosa City Council voted unanimously on first reading, to pass an ordinance that would allow the city to spend up to $10,000 in support of the campaign to recall Payne. It was unprecedented for a city council — any city council — in Colorado to become actively and financially involved in a municipal campaign to remove an elected official.

The vote was held after a lengthy, damning presentation by APD Chief Ken Anderson that laid out, in documented detail, the extreme adverse impact Payne’s behavior in office was having on law enforcement and the safety of the city’s citizens. That ordinance passed on its second reading two weeks later and was put into effect.

By that time, it was rumored that Willett was considering a run for his former office, should a recall campaign be successful and empower the voters to decide if Payne should stay in office. In the Valley Courier, it was reported that Willett confirmed the rumors. He was thinking about running. If he decided to do it, the former DA’s name would be on the same ballot as likely the sole candidate to replace Payne should voters decide to remove him from office.

The suspicious filing of charges

On March 3, 2022, the day after that March 2 city council meeting, Alonzo Payne filed charges of felony embezzlement of public property against Willett, stating Willett had violated state law in giving himself a $1500 bonus during his last days in office. The charge was allegedly based on the results of the investigation Payne had assigned to his investigator two months before and was filed in a legal manner that does not involve a judge reviewing the documents that would justify the charge.

If convicted, felony embezzlement of public property would have prevented Willett from seeking public office and or practicing law ever again.

The investigation is a key part of Willett’s claim of malicious prosecution, with specific focus on who Payne assigned to conduct the investigation, the way in which the investigation was conducted and what was included — plus, more importantly, what was not included — in the investigative report that served as the basis for the charge. It also is at the core of why the investigator was personally named in the lawsuit.

The investigation that…was not

The claims made by attorneys representing Robert Willett paint a picture of an investigation that was absent significant information, including an interview with Willett – the defendant – or any attempt to get a statement from him explaining his actions. The suit also states, “At no time were the sitting county commissioners of Alamosa County or their subordinates ever interviewed as part of the investigation and charging of Mr. Willett, as would be basic police investigative procedure.”

The charge related to Willett’s alleged salary which, in violation of state statute, was allegedly exceeded when Willett gave himself a bonus of $1,500. According to counsel’s claims, the investigation relied upon a “payroll sheet”, given to the investigator by Payne and “purportedly generated by the business and finance officer for the DA’s office.” The suit claims the payroll sheet showed a salary higher than the amount Willett was paid.

However, that discrepancy was not known as the investigator did not get copies of Willett’s tax filings with the IRS to confirm the “payroll sheet” given to him by Payne. Had that happened, it would have been learned that Willett’s salary was actually $4,000 less than the state dictated a DA should be paid, making one of the core claims upon which the charge was based essentially false.

Attorneys for Willett also claim that the investigator did conduct an interview with a former Assistant DA for the 12th Judicial District in which the former ADA said the distribution of bonuses to employees at the end of the year had been a standard practice and something done under “numerous” DAs in the past.

“(The investigator’s) sparse one page report, describing his investigation did not even give rise to the legal standard of probable cause, but was ultimately used to justify a false charge against Robert Willett for Embezzlement of Public Property,” the document reads.

The malicious prosecution

The prosecution of Willett lasted about seven months with delays cited that held up proceedings and then referral of the case to a DA in a neighboring judicial district where an attorney who was, at one time, employed by Payne was working.

After a motion was filed by Willett’s defense attorneys, the case was moved — again — to a different DA in the 5th Judicial District not associated with Payne or the office of the 12th. On Sept. 1, 2022, the prosecuting attorney appointed to the case dismissed the charges against Willett with prejudice, a decision upheld by the Chief District Judge based on the “underlined factual scenario and lack of prosecutorial merit.”

What Willett wants

Language in the court document states that Willett was subjected to “unauthorized, arbitrary, and malicious governmental action (and)…he was deliberately and intentionally framed for a crime of which he was factually innocent, through the Defendants’ fabrication, suppression, and withholding of evidence.”

That malicious prosecution was politically motivated.

The DA’s office is listed in the suit as, paraphrased, the employees working in the office at the time were aware that bonuses were a regular practice and failed to take reasonable steps to intervene in a prosecution they knew was false. As worded in the document — again, paraphrased — failure to attempt to intervene makes them complicit in what was being done.

The charge had the potential to prevent him from ever practicing law again. It also caused him to be suspended without pay from his position as a Deputy DA in Colorado for seven months, pending an outcome in the case. At the same time, he was forced to hire attorneys to represent him in his defense.

The lawsuit claims, Willett suffered actual physical and emotional injuries and other damages…including loss of past and future income and loss of earning capacity, loss of property and attorney’s fees as well as humiliation and embarrassment.

The suit is for $5 million and includes the stipulation that training be conducted and a monitor to be put in place to assure actions like this do not occur again. Willett is also asking for a jury trial in the case.

Anne Kelly, DA for the 12th Judicial District, made the following statement, “The District Attorney’s Office is aware of the lawsuit that Mr. Willett filed. The Office takes all such matters seriously and will take appropriate action to address the claims. I am confident Mr. Willett’s decision to bring a civil action against the current District Attorney’s Office will not detract or distract us from the important work we are accomplishing in the Valley.”

When asked for comment, Kris Miller, attorney for Robert Willett told the Valley Courier, “There is only so much I can say because we’re in litigation, but I can say this case is in support of Bob Willett. He’s exactly the prosecutor who shouldn’t have to contend with these issues.

“He’s always been a proper gatekeeper for justice generally. He’s always had the proper temperament as a district attorney and deputy district attorney. This isn’t a guy who should have fallen into the crosshairs or dragged into this. The narrative has been guided by others, and he’s just pursuing what rights he has in a civil context to make himself whole.”

When asked about his plans, Willett says, “I’m not now or in the future going to run for political office in the San Luis Valley again. I’m not even sure I’m going to keep my house there. Anne Kelly beat me fair and square, and I think she’s doing a good job in her position. But I’m going to be 62 years old and, at some point, I’m going to ride into the sunset. And that will not be happening in the San Luis Valley.”

As for Payne, he resigned from office the day before the recall campaign was scheduled to start and was subsequently disbarred from practicing law, in part because of claims described in the lawsuit, on Oct. 26, 2022.