This story was updated at 4:40 p.m. on Aug. 15 to include the victim’s family’s response and additional clarification from the District Attorney’s Office.
Boulder County District Judge Thomas Mulvahill on Aug. 13 approved a stipulation — a formal agreement between the Boulder County District Attorney’s Office and the defense — that Garret Littenberg was not guilty by reason of insanity in the 2023 murder of his roommate, Kurt Smolker.
The agreement, reached by both sides and submitted for the judge’s approval, means the case will not go to trial.
Prosecutors said the decision was based on expert evaluations. Shannon Carbone, a spokesperson for the District Attorney’s Office, told Boulder Reporting Lab that doctors from the State Hospital and two of three privately retained doctors concluded Littenberg was not guilty by reason of insanity. She said he will remain in the State Hospital for at least 30 years before he can petition for release. “If the defendant remains unsafe to the community, the State Hospital can hold him in their secure facility for the rest of his natural life,” she added.
According to a Boulder Police Department affidavit, when police arrived at the scene on Aug. 29, 2023, Littenberg crawled out of the apartment shirtless, with his arms covered in blood. Inside, officers found Smolker’s body surrounded by knives, “partially eviscerated.” Smolker had called Littenberg’s mother, Valerie Littenberg, before his death, telling her that Littenberg was “not acting right.”
Over the phone, Valerie said she heard Garret “screaming, talking about Putin, rape, and complete gibberish.” Littenberg’s brother, Chase, told police he overheard Garret say, “I killed him, I’m going to prison for the rest of my life,” according to the affidavit. Police said Littenberg admitted to the crime several times in the hours after the murder. He was prescribed medications for anxiety and psychosis at the time.
Smolker’s friends and family appeared in court Aug. 13 to urge the judge to take the case to a jury trial.
“That’s the only solace I have standing before you today, is hope for justice,” Smolker’s father told the judge. He begged for a trial, telling the judge his grief counselor said he would not heal without one. He also said the District Attorney’s Office had told him they “would never plea bargain this case.”
He argued that there was a possibility that Littenberg, who was a law student, had faked insanity to avoid incarceration, and that the experts’ opinions should be tested through cross examination during a jury trial.
Smolker’s friend, Carlos Álvarez-Aranyos, told the judge the purpose of a trial wasn’t just about verdicts, but about ensuring the community hears the truth. “I want to know what happened to my friend,” he said.
“The grief and the agony, and the anger of the family and friends of Kurt Smolker is evident. It’s palpable in the air of the courtroom,” Judge Mulvahill said. “That’s not something I take lightly. … In many cases, the criminal justice system does a poor job of satisfying all the different interests for the people who have a relationship with the victim.”
Assistant District Attorney Ken Kupfner told the court that three of the four experts they consulted were confident in their insanity determination. The fourth did not interview Littenberg directly and “was very uncertain,” according to Kupfner. He said his office did not believe they could overcome the three experts’ testimony to prove Littenberg was sane beyond a reasonable doubt.
“Either way, the outcome was going to be not guilty by reason of insanity,” Kupfner said. He said the District Attorney’s Office entered the insanity stipulation because it allowed them to apply restrictions to Littenberg that they could not if they went to trial and lost.
According to Carbone, the stipulation bars Littenberg from petitioning for release, hiring doctors to evaluate him or having attorneys advocate for his release for the next 30 years. The state hospital can petition the court to release Littenberg before that point, which would prompt the court to hold a hearing to determine whether he is no longer a danger.
Under the law, the victim’s family would not typically have the right to speak at such a hearing. However, Carbone said that the stipulation allows both prosecutors and the victim’s family to participate.
The family is not satisfied with this arrangement, believing he could still be released. They cite reporting from the Denver Post that between 1990 and 2015, the average length of stay in the state hospital for people “originally accused of first-degree murder” was 7.4 years.
When Judge Mulvahill approved the stipulation, he noted that both experts who interviewed Littenberg — each for about seven hours — agreed that he was insane at the time he committed the murder. He said prosecutors had an ethical obligation not to pursue a case they did not believe they could prove, adding that the Boulder County District Attorney’s Office is “not shy about taking cases to trial.”
“It takes more courage for the District Attorney’s office to tell a grieving, angry, upset family that they cannot take the case to trial,” he said.
Carbone lied. There is no guarantee Littenberg will stay in the hospital for 30 years. Colorado law says he gets a psych review every single year, and if the doctors decide he’s okay, he gets let out, with no oversight of medication compliance. Usually those who commit these NGRI murders and get out spend an average of only 8 years in the hospital. It’s atrocious.
The judge framed the family’s desire for a trial as simply emotional and grief-based. That is vastly incorrect and undermines the excellent points made about failure to follow the basic tenets of the judicial system and strong evidence that Littenberg was lucid during the crime.