Federal judge declines to toss wrongful prosecution lawsuit filed by developer Ray Marshall; $402 million in damages sought

Nov. 29—A federal judge declined to toss out a developer's wrongful prosecution lawsuit claiming a former investigator for the district attorney's office in El Paso County fabricated evidence and withheld evidence from his defense lawyers.

In a Nov. 14 ruling, U.S. District Judge Nina Wang ruled that Ray Marshall's lawsuit can proceed against Linda Dix, the former investigator. Dix in recent court filings has denied "that she acted in violation of any law or constitutional obligation."

The lawsuit, which seeks $402 million in damages, contends Marshall was wrongfully prosecuted despite evidence of his innocence from 2009 until 2020 through the filing of two criminal cases. Marshall faced 86 charges but was never convicted.

The criminal cases against Marshall accused him of embezzling more than $1 million from a city of Colorado Springs incentive package meant to keep the U.S. Olympic and Paralympic Committee in the city.

A jury acquitted Marshall on 42 counts in the 2009 case, and prosecutors dismissed the remaining charges in May 2020 after another former investigator for the district attorney's office claimed evidence had been manufactured against Marshall.

Dix retired from the district attorney's office during the administration of Dan May.

The ruling from Wang dismissed claims in the lawsuit alleging that Dix conspired with the city of Colorado Springs and Colorado Springs City Council members.

"The court agrees that Mr. Marshall fails to sufficiently allege a concerted action on the part of the city defendants," Wang wrote in the ruling. "Plaintiff's allegations, though numerous, are largely conclusory and lacking in factual support."

However, Wang rejected in her ruling Dix's contention that she was entitled to absolute immunity from Marshall's claim that Dix withheld potentially exculpatory evidence from the defense. Wang noted in her ruling that case law has established "that where a court orders the production of certain evidence, the court 'removes all discretion from the prosecution.'"

Wang also found that Marshall's claim that Dix used "false, sworn statement of fact in an arrest warrant affidavit" if proven true could amount to a constitutional violation of due process.

Marshall contends in his federal lawsuit that Dix hid audio tapes of Colorado Springs City Council executive sessions for nearly a decade despite "numerous" court orders that "all discovery be turned over to Mr. Marshall's defense lawyers."

Marshall's lawyers in the federal lawsuit include Jane Fisher-Byrialsen, who pursued a successful civil rights case on behalf of one of the so-called Central Park Five — New York City teenagers imprisoned in a jogger's 1989 rape and later exonerated. In 2014, Fisher-Byrialsen's client was awarded $12.2 million in a settlement.