Colorado judge wrestles with new evidence in woman’s 2008 triple murder conviction

COLORADO SPRINGS (CN) — Testimony in a weeklong Brady hearing wrapped on Friday, leaving a Colorado Springs judge to decide whether recently discovered documents might have changed a 2008 jury's decision to convict a mother of murdering her three children.  

“I realize how serious this case is,” said Senior District Judge R. Michael Mullins at the close of the five-day hearing. “Because of the nature of the case, it’s really easy to get tied up in the emotions, but you have both done a great job of presenting the facts so I can proceed unencumbered.”

Jay was 11 years old, Sophia 5 and Sierra just 3. Their mother, Deborah Nicholls, lit candles on March 7, 2003, after cleaning the house but maintains her innocence, saying the fire was an accident.

Prosecutors nevertheless secured triple murder convictions against Nicholls in 2008 and her husband, Tim, in 2007, arguing the couple conspired to douse the furniture in cleaners, torch the house and collect insurance proceeds to pay off drug debt — a sinister story corroborated by a jailhouse informant who testified to hearing Tim confess.

Tim and Deborah are both serving life sentences and lost their initial appeals. The 2023 revelation of a 2007 report from a Colorado Bureau of Investigation analyst, however, supported the defense and prompted Deborah’s weeklong Brady hearing for a new trial.

Following the 2003 fire in Colorado Springs, investigators collected materials identified by a police dog looking for evidence of arson. In 2003, two analysts, one state and one private, issued reports identifying xylenes, which prosecutors postulated came from Goof Off cleaner sprayed on the furniture.

In 2006, Nicholls’ defense consulted with a third expert, John Lentini, who found no evidence of ignitable liquids and argued that the state’s evidence had been contaminated.

The Lentini report in hand, prosecutors consulted with a fourth expert at the Colorado Bureau of Investigation, Tom Griffin, whose findings corroborated the Lentini report, developing exculpatory materials that were never disclosed to Nicholls’ trial team.

Throughout the Brady hearing, defense attorneys from the Korey Wise Innocence Project at the University of Colorado Boulder and prosecutors from the Fourth Judicial District Attorney's Office questioned fire investigators who worked the case, prosecutors who secured the 2008 conviction and Griffin, the now-retired chemist who penned the notes questioning the state’s evidence.

Several investigators who worked the case said the confirmation of ignitable liquids helped verify their hunches but that even if the evidence had been thrown out, it didn't change their belief that the fire had been arson.

“I can tell you that as I sat there that day, I thought this fire grew too fast to be a result of an accident,” testified Robert Toth, a fire and explosion investigator who worked the case two decades ago. “I brought in other people to test my theory, and it wasn’t ‘tell me I’m right’ — it was ‘test this to prove I’m wrong.’"

Chief Deputy District Attorney Jennifer Viehman stands by the conviction and argued that the revelation of Griffin’s report wouldn’t have changed the outcome of the case. Defense attorney Janene McCabe believes the information challenged the state’s theory in a way that could have changed the outcome of the trial.  

“The problem is you can’t unring the bell,” McCabe said. “The jury heard a lot of evidence, and to have an investigator come in and say, ‘I didn’t really rely on that,’ well, the jury heard it, and it mattered to the Court of Appeals.”

Mullins told the parties he was struggling with how to answer the enigmatic question of how the information presented might have influenced the jury.

“If the evidence was exculpatory, how would it impact the outcome of this case?” Mullins asked.

Rather than how the new information might have changed investigators' opinion, Mullins said he was more interested in “what the jury heard and how they weighed the evidence.”

Mullins asked the parties to file written closing arguments and proposed conclusions of law, which he will review with the submitted record. The judge did not indicate when or how he would decide the case.

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