Colorado Death Row Case Moves Forward

Nathan Dunlap, on Colorado’s death row for killing four employees of a Chuck E. Cheese restaurant in 1993 (and convicted in 1996), lost his last state level appeal before the Colorado Supreme Court today.  Several appeals in the federal courts must be completed before there is an execution in this case. 

Until appeals are complete in this case, or the other case in the death penalty pipeline in Colorado runs its course, Governor Ritter will not have to put to the test his campaign promise to carry out Colorado’s death penalty.  An extended review of Colorado’s history of involvement with the death penalty is set forth below. The Merits of Dunlap’s Appeal

Dunlap’s main argument on this appeal was that his trial lawyer was constitutionally ineffective because he failed to adequately investigate Dunlap’s history of mental health problems, either as mitigation of guilty or in the penalty phase of the trial, and otherwise didn’t act competently at the penalty phase of the trial.

The Colorado Supreme Court explained in a 115 page ruling why Dunlap’s lawyer did an adequate job and how mistakes Dunlap’s lawyer made were inconsequential.  The decision was 6-0.  Justice Eid did not participate because of her prior involvement in the case during her tenure as solicitor general for the State of Colorado.

What Next?

While the Colorado Supreme Court’s order today calls for an execution date to be set, in the Kubaki drama that is death penalty appeal litigation, this execution date is almost certain to be set aside multiple times as appeals are considered by federal courts before the death peanlty order becomes final. 

Dunlap is likely to appeal today’s ruling to the U.S. Supreme Court, alleging that the Colorado Supreme Court’s ruling at this stage was contrary to federal law or the constitution.  The U.S. Supreme Court denied relief to a prisoner on death row in Arizona, in a case presenting similar alleged constitutional violations, Schriro v. Landrigan, today, in a 5-4 decision written by Justice Thomas.

The U.S. Supreme Court is likely to deny review at this stage.  Usually, the U.S. Supreme Court grants review either upon a direct appeal from a conviction, or at the last possible moment in a case.

A habeas corpus petition will then be presented to the U.S. District Court for the District of Colorado, then reviewed by the 10th Circuit Court of Appeals, and finally reviewed by the U.S. Supreme Court.  There is also likely to be additional, brief, last minute litigation on the manner in which the execution is conducted if these appeals do not result in a commutation of the death sentence or even less likely in Dunlap’s case, a setting aside of the underlying conviction. 

This could take several years.

In principle, the standard of review in federal appeals is less searching than that in state appeal, as a result of a federal law adopted in 1996 called AEDPA.  AEDPA imposes strict time limits and limits the power of federal judges to grant relief unless:

[T]he state court’s adjudication of the claim resulted in a decision that was (1) contrary to, or involved an unreasonable application of clearly established federal law as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.

In practice, however, federal judges have often tended to strictly scrutinize state death penalty cases notwithstanding this deferential standard of review.  A significant number of death penalty appeals result in having a convction set aside or a death penalty commuted to life in prison.

Edward Montour, Jr.

Edward Montour, Jr. is not on death row in Colorado right now, but has been convicted of first degree murder and could return there after further proceedings at the trial level.  Until three weeks ago, he was the only other person in Colorado on death row besides Dunlap.

Montour killed a prison guard in 2002, while he was serving a life in prison without parole murder sentence for kiling his infant daughter.  Montour was a death penalty volunteer who pleaded guilty without receiving any offer of leniency from the prosecution.  He was sentenced to death by the judge who received his plea. 

He continued to represent himself in the penalty phase, presented no mitigation, and was sentenced to death by Judge King of the Douglas County District Court.

When Montour’s plea was taken he said:

I am antisocial, homicidal and without remorse and will remain a potential threat. The state can kill me, I don’t care.

Montour’s case was remanded to the trial judge three weeks ago by the Colorado Supreme Court, to determine if he properly and competently waived his right have a jury rather than a judge sentence him to death after he pleaded guilty, or whether he merely waived a jury trial for the purpose of determining his guilt.

Montour has been fighting with his court appointed attorneys in an effort to hasten his execution.  If he is again found competent at the trial court level, he is likely to waive a right to a jury trial and be sentenced to death again, and then waive further appeals.  Thus, his case is likely to make it to Governor Ritter’s desk for consideration before Dunlap’s, despite the fact that Montour’s murder took place nine years after Dunlap’s.

The Recent History of Colorado’s Death Penalty

The vast majority of people convicted of first degree murder in Colorado are sentenced to life in prison without parole, rather the the death penalty.  There are 677 first degree murderers serving life sentence in Colorado at this time as of the 2006 Annual Report (page 77 of 110) of the Colorado Department of Correction. Only one person who fought his death penalty at trial is currently on death row in Colorado. Colorado’s practice of keeping the death penalty on the books, but using it very infrequently and only for particularly heinous crimes, is typical of many death penalty states outside the South.

Everyone else who had once been on Colorado’s death row in 2004 had their sentences commuted to life in prison, when the U.S. Supreme Court held that having judges impose death penalties based upon facts not found by a jury at trial was unconstitutional in the case of Blakely v. Washington.  Most of those on death row in Colorado at the time Blakely was decided in 2004 had been sentenced to death by judges under a system implemented by pro-death penalty legislators in an effort to increase the likelihood that murderers would be sentenced to death.

Colorado has had one execution since the death penalty was reinstated after 1972, after the U.S. Supreme Court declared the previous version unconstitutional.

Gary Davis was executed in Colorado in 1997. He confessed to the rape and murder for which he was convicted in open court during his 1987 trial (obviously, against the advice of his attorneys), and claimed to have committed 14 other rapes after he was convicted of murder.  Thus, like Montour, he was what is called a “death penalty volunteer”.

No one has been sentenced to death for a federal crime committed in Colorado since, at least, the time when the death penalty was reinstated. But, Timothy McVeigh, the Oklahoma City bomber, was tried and convicted after a 28 day trial in Denver in 1997, a venue chosen to avoid the prejudice that might have arisen had he been tried in Oklahoma. McVeigh was later executed in Terre Haute, Indiana on June 11, 2001. The was no serious suggestion after his conviction that he was not guilty of the murder, although there is lingering doubt about how many co-conspirators there were to the crime.

Prior to 1972 there were 101 executions in Colorado (including 11 prior to Colorado being admitted as a state, and hence under federal territorial authority of some type), the last of which took place in 1967. From 1859 (when Colorado was a territory) to 1933, executions were conducted by hanging, from 1934-1967 a gas chamber was used. In 1997, the execution was carried out by lethal injection. All executions for Colorado crimes have been for murder, sometimes in connection with another serious felony such as robbery or rape.

An effort to end the death penalty in Colorado and to reallocate funds saved by that decision to pursuing cold murder cases was defeated in the 2007 legislative session.

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Andrew Oh-Willeke

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