DENVER -- On Jan. 18, 2017, only about a week into her new job as Denver District Attorney, Beth McCann had her office file an “unusual” request in district court.
The document was called a “people’s statement conceding reversal of conviction.”
It essentially told the court system that the DA’s office had changed its mind after winning a conviction during a jury trial the prior year.
In fact, McCann’s office wrote that it completely agreed with the convicted criminal’s defense attorney – that the case should have never even been filed by her predecessor, Mitch Morrissey.
The FOX31 Problem Solvers were familiar with the name of the criminal listed in the paperwork: 25-year-old Kendall Robertson.
Robertson was part of a politically connected family. His mother, Angela, was a Denver high school principal. His dad, Charles was a deputy director for former Denver Mayor Wellington Webb. Longtime Denver School Board member Landri Taylor told FOX31 he was a good family friend.
A copy of Kendall Robertson’s resume on file at Denver Public Schools even listed current Denver Mayor, Michael Hancock, as one of three job references.
In June 2015 the FOX31 investigative team broke the story: Police had arrested Robertson, who was a part-time coach and substitute teacher at Denver’s Collegiate Prep. According to DPD records released at that time to FOX31, Robertson had only been on the job about a month when complaints surfaced about his behavior with some high school students.
The arrest affidavit said Robertson had been put in charge of overseeing after-school detention. Several female students accused him of confiscating their cell phones, then reportedly without their permission, said Robertson trolled through the devices looking for sexual material.
In one instance, Robertson reportedly approached a girl and told her she had a “beautiful body,” asked her why she was “such a freak” and if he “could watch the video again.”
That minor, listed only by initials in court paperwork, had recorded herself masturbating. Another student complained to police Robertson commented on a picture of her in a bra after viewing it on her cell phone.
At that time, Denver’s District Attorney Morrissey believed Robertson’s behavior met Colorado’s “electronic Peeping Tom” statute and charged Robertson with Invasion of Privacy for Sexual Gratification, a Class One Misdemeanor.
An email from Morrissey’s office to FOX31, dated October 28, 2015 said a Denver jury (unanimously) voted to convict Robertson of that crime. That class of sex crime would also, according to state statute, have required him to register as a sex offender.
According to legal expert and defense attorney Terry O’Malley, Robertson was finished working around students. O’Malley told FOX31 “You don’t get a second chance on something like this. You better look for a new career. it’s pretty much devastating.”
When the FOX31 Problem Solvers went to check the sex offender registry for Robertson’s name this year, it was not listed. Our search was prompted by a viewer, who contacted FOX31 with concerns Robertson was allegedly working at another school.
Our attempts to figure out why Robertson’s criminal case had vanished from public view led the investigative team on a four-month journey that, at times, defied logic.
For starters, the Denver DA’s office responded to our requests for information on Robertson’s status with an official statement of: “No records exist in regard to this person.”
Likewise, the Denver Police Department had no arrest affidavit or mugshot for Robertson.
Denver court records and a standard criminal background check showed a few traffic tickets for Robertson, but no mention of his invasion of privacy for sexual gratification conviction.
All of those records disappeared from public view, yet FOX31 possessed all of those same records in our own archives because we had covered Robertson’s criminal case in 2015 and 2016.
Legal expert and defense attorney Dan Recht told FOX31 every record had been either expunged or sealed and that Robertson’s case had been “dismissed.” Robertson was officially an innocent person.
However, according to Recht, the way the court case vanished was a rare legal maneuver, one initiated by DA Beth McCann.
“The DA’s office, which had convicted this guy in the trial court, filed a pleading that said ‘we agree with the defense. This wasn’t a crime and the court should grant the appeal and dismiss the case.’ That is unusual. I frankly don’t remember seeing that happen. Ever.” -- Legal expert DanRecht
DA McCann was elected and took over for retiring prosecutor Mitch Morrissey on January 11, 2017.
One of her first official acts was to help acquit Robertson. That opened the way for Robertson’s defense team to seal all accounting of the criminal proceedings or crime allegations.
“The question remains: Why didn’t they see that mistake before they tried this guy? Why did it happen like that?" Recht asked FOX31 during an on-camera interview. “They chose a very unusual option, which was to agree with the defense and say this wasn’t a crime, even though they had prosecuted it all the way through a trial!”
Because he has a clean criminal record, Robertson was free to go get whatever job he wanted. FOX31 Problem Solvers found he chose to work at a small school in Baton Rouge, Louisiana called Southern University and A&M College.
Robertson’s new position appears to put him in contact with teenagers while working his job in the student identification card office.
FOX31 tried to speak with Robertson outside his office inside the college’s athletic facility, but he declined to speak about his acquittal.
“No thank you,” said Robertson. “You talk to my lawyer in Colorado. You talk to him.”
That attorney did not reply to a request from FOX31.
FOX31 also wanted to hear from DA McCann about her behind-closed-doors-decision, but through a spokesperson she declined, sending an email which said in part:
“Most respectfully, as you well know, no such record exists with respect to this person. How then can we legally agree to an interview? I think the request is unfair.”
Mayor Hancock’s staff said the “Mayor was not aware his name was listed as a reference and was never contacted for a reference.”
The Denver school district could not confirm if it ever contacted Robertson’s references, but told FOX31 is has a third-party vet employees and that that outside company is supposed to contact job references as part of the hiring process.
The legal reasons behind Robertson’s appeal and why DA McCann’s office are laid out in the reversal of conviction document. WARNING: Some language in the document is explicit and may not be appropriate for some readers. View the reversal of conviction document here.
The basic defense argument was that the way the Invasion of Privacy for Sexual Gratification statute was written, the person doing the "viewing" must do so with their own eyes, not through the eyes of a lens or electronic device.