These challenges face attorneys in Donthe Lucas homicide trial
One of the biggest Pueblo homicide trials in decades — perhaps one of the biggest in the city’s history — began Wednesday at the Dennis Maes Judicial Building.
Donthe Lucas stands accused of first-degree murder in the disappearance of his pregnant, 21-year-old girlfriend Kelsie Schelling, who went missing in Pueblo on Feb. 4, 2013, after traveling from her home in Denver to see Lucas.
But the Lucas trial is the antithesis of an open-and-shut case.
Both the prosecution and defense will need to navigate several obstacles to prove their claims to the 12 jurors who will ultimately decide Lucas’ fate.
The 10th Judicial District Attorney’s Office will need to prosecute Lucas without integral pieces of evidence. There is no body because Schelling’s remains have never been found; no murder weapon has ever been recovered; several years have passed since Schelling went missing.
For Lucas’ defense team, one of the biggest challenges is how well-known the case is throughout Pueblo. They’re defending their client in an eight-year-old case that has received substantial publicity and national media attention, including a feature by the national investigative series “20/20” in 2016.
Joe Koncilja, who has practiced criminal defense in Pueblo for nearly four decades, said with all the factors involved in the Lucas case, its outcome is “kind of a jump ball.”
Koncilja said when looking at no-body homicide cases, a high percentage end up in a conviction — somewhere in the ballpark of 80 percent.
“A lot of that is because of the fact that they have DNA evidence or an explanation for not finding a body, which is a little bit different from this case,” Koncilja said.
Koncilja said one of the strongest pieces of evidence the prosecution has going for it is the fact Lucas is documented through text messages as having convinced Schelling to come to Pueblo to meet him.
“There’s no question that she showed up down here,” Koncilja said.
“There’s no explanation for why she would not keep her cell phone with her, why she would leave her car. Everything would indicate, rationally, that something terrible happened to her down here.”
But Koncilja said on the “other side of the coin,” there’s a lack of DNA evidence directly tying Lucas to Schelling’s murder and that many details about how she may have died and what might have happened to her remains are currently unknown.
“The question is going to be how the jury processes all that information and comes to a conclusion one way or another,” Koncilja said.
“And you just don’t know. It depends on the composition of the jury, the performance of the lawyers, how the witnesses come across and how people are able to tie it all together.
“Somehow out of that mix, a fair resolution is going to come. And I could see it happening either way.”
Challenges for the prosecution
To achieve a conviction, one of the primary challenges for prosecutors will be proving beyond a doubt that Schelling is dead.
John Kellner, the district attorney in the 18th Judicial District, has an extensive background prosecuting cold cases and also successfully tried a no-body homicide case in 2013, leading to a first-degree murder conviction.
Kellner recently spoke to the Chieftain about the general challenges of prosecuting no-body cases, as well as cases in which significant time has passed since the alleged homicide. Kellner did not comment on Lucas’ case specifically but said, “everything about a cold case can be difficult.”
Those difficulties include faded memories of witnesses, degraded evidence that may not have been collected and preserved in ways that adhere to modern standards, and personnel turnover within investigative bodies, as several detectives and investigators may have “picked it up and looked at it over time and set it back down.”
Opening statements:Day 1 from Donthe Lucas trial in Kelsie Schelling's death
Lucas trial day 2:Friend of Kelsie Schelling testifies about alleged abuse by Donthe Lucas
Kellner said just because several years may have passed since a crime was committed doesn’t mean witness testimony is any less reliable or will be perceived as any less reliable by a jury.
“The thing that any cold case prosecutor is going to do — they’re going to corroborate every single piece of evidence that they possibly can,” Kellner said.
“And this is going to be different than a trial where the offense has occurred a year-and-a-half ago. So you might do things as simple as confirming what the witness said in their police report about the weather from a decade or two ago was accurate that day.
“You’re going to look for every single small piece of corroborating evidence to bolster that testimony to make sure that it is believable, to make sure that it’s accepted by the jury.”
Kellner said in general, the key to success in prosecuting cold cases is corroborating as much information as possible, using every available advancement in technology to review evidence and “ensure you’ve basically turned over every stone.”
In prosecuting no-body cases, however, there are significantly fewer stones to turn over.
A body is an integral part of any murder investigation, Kellner said, as it establishes how a person was killed and, ideally, who committed that crime.
“Unfortunately, the body is often the best evidence of that,” Kellner said.
“It will show you whether the wound was inflicted through a knife or a gunshot or strangulation or some other blunt force. So obviously not having that crucial piece of evidence means you have to bring to the jury some other compelling evidence to fill that incredible void.
“And when it comes to no-body cases, oftentimes you’re looking at the actions of the defendant — what they did in the time preceding the disappearance of the victim, looking at what they did potentially after the fact to see if there were efforts to conceal their movements or their actions that might have an indication of guilt.”
He said an incredibly difficult part of prosecuting no-body cases is establishing that the victim is actually deceased.
To do so, Kellner said that in his past cases he used law enforcement partners ranging from local police up to the FBI and asked them to search for the missing person “as if they were America’s Most Wanted.”
He said the goal of such a search is to find any indication that person is “living a normal American lifestyle somewhere.”
Kellner said a lack of contact with loved ones is often another tell-tale sign a person is no longer living.
“Nobody typically drops off the face of the Earth,” Kellner said.
“And what they’re least likely to do is relinquish all of those relationships — their friendships, their family, their kids, potentially. So even when somebody is wanted by the police who is America’s Most Wanted or in that top 10 list, they’re still often reaching out to their spouse, their kids, their girlfriend. And that record of communication, of course, establishes they are still alive.
“So we do the opposite in a no-body case … we’re looking for the absence of any of those attempts to reach people that they care about.”
So what are the keys to achieving a conviction in a no-body case?
“I wish there was a manual for that. There’s not,” Kellner said.
“Every case is unique. The bottom line is you’ve got to present compelling evidence to the jury that the person is, in fact, deceased, and that the person you’re accusing did it. How you go about doing that is going to depend on what evidence you have available.”
Challenges for the defense
Doug Richards, a private defense attorney in Denver, has worked several high-profile criminal cases in his career, including homicides, sexual assaults and public corruption matters.
Richards, who also spoke to the Chieftain not about Lucas’ case specifically but about the general challenges of litigating high-profile homicide cases, said a significant amount of media attention on a case poses problems for the defense before, during and after the trial.
For instance, leading up to a trial, Richards said defense lawyers often file motions or litigate particular issues to try to protect the case record for an appeal.
“It might be an issue you’re not expecting to win, but you file a motion in good faith because you want to protect the record,” Richards said.
“But on a very high publicity case, you might think about not filing that motion because you don’t want the press to report on you losing something and then your potential jury pool is reading that, thinking, ‘This guy must have done something wrong because the judge is ruling against him.’
Richards said high-profile cases also put pressure on prosecutors, which can alter their decisions about how to proceed with a case.
“Having something that’s high publicity makes it more complicated, I think for everyone, including the prosecutors,” Richards said.
“Let’s just say it’s a case that the prosecution might ordinarily think that they would want to dismiss. Maybe they think that there’s a problem with the case and may want to dismiss it, or they might make an offer that’s really attractive to a defense attorney and a defendant. But because of the publicity, they feel the pressure, either from the family, the victim or politically, for whatever reason, they feel like they can’t make that offer.
“So you can get kind of mentally pushed around a little bit. You can be intimidated by the reporting, and I think that can sometimes affect how a prosecutor evaluates their case.”
But just because a case is high-profile and is well known to members of the community and subsequently a jury pool, doesn’t mean a defendant won’t be able to get a fair trial.
When trials begin, jurors are given specific instructions to disregard anything they may previously have heard about the case and avoid doing any independent research on the matter outside of the courtroom.
Their verdict is supposed to be entirely based on the evidence they see and hear presented in court.
Koncilja said the vetting process for jurors typically attempts to weed out those who have an extensive knowledge or a preconceived notion of a defendant’s guilt about a case.
But with a case like Lucas’, in which dozens of stories have been written and broadcast over the course of eight years, basically every juror has at least some background knowledge about the case.
“When you get somebody who comes in and says, ‘I haven’t heard anything. I don’t know anything about it. I don’t know who Donthe Lucas is.’ You’ve got either a liar or somebody who really just lives under a rock,” Koncilja said.
“The question is, do you want either one of those people on your jury?”
Lucas’ attorneys did file a motion to have the case moved to another venue in 2019, which was denied.
Koncilja said although it probably would have been preferable for Lucas’ defense to move the case out of Pueblo, due to its high publicity, it’s not necessarily a bad thing it remained in the 10th Judicial District.
“In all honesty, Pueblo is a pretty good place for defense attorneys to try cases,” Koncilja said.
“And if you move to change it, where do you change it to? Do you go to Colorado Springs where it’s more conservative? Change it to another jurisdiction?
“Pueblo is a little more sympathetic to the plight of a defendant, and good defense attorneys — also good prosecutors — they adapt themselves to where they’re located. And I think that’s what these guys are going to do.”
Chieftain reporter Zach Hillstrom can be reached at firstname.lastname@example.org or on Twitter @ZachHillstrom.