Colorado

Colorado

Colorado Supreme Court Overturns Prison-Murder Conviction, Says Prosecutors Withheld Evidence in Death-Penalty Case

The Colorado Supreme Court has upheld a trial court ruling overturning the first-degree murder conviction of David Bueno (pictured) after Arapahoe County prosecutors who sought the death penalty against him in a prison killing hid evidence that pointed to another suspect. The January 22 ruling comes in the wake of a trial court ruling that prosecutors in the state's 18th Judicial District, which includes Arapahoe County, also suppressed more than twenty pieces of evidence that should have been disclosed to the defense in the capital trials of death-row prisoners Sir Mario Owens and Robert Ray. Bueno's lawyer, David Lane, called the pattern of prosecutorial conduct in the 18th Judicial District, "Mississippi in the mountains." "Ethically, prosecutors are required to seek justice, not convictions," he said. "But they apparently lose sight of that on a regular basis, especially on death-penalty cases in the 18th Judicial District." Bueno and a second Latino prisoner, Alex Perez, were charged with stabbing a white prisoner, Jeffrey Heird, to death in 2004. The day before the murder, another white prisoner, Michael Snyder, told his wife in a phone call recorded by the prison that he had been ordered to stab a prisoner. The evening after the murder, a prison nurse found a note containing threats by a white supremacist prison group to kill “men of the white race who refuse to accept their proud race.” The nurse immediately prepared an incident report that included a copy of the letter. One day later, another white inmate died under suspicious circumstances and a prison lieutenant who was investigating the death prepared a second report suggesting the deaths might be connected. The court wrote that undisputed evidence established that "the prosecution possessed both of these reports within days of Heird’s murder but did not provide copies of them to Bueno until five years later," after he had been convicted. Despite specific requests by the defense to be provided all incident reports, and in violation of its constitutional obligation to disclose all potentially exculpatory evidence, the court found prosecutors had made “a conscious decision ... to keep the information from the Defendant." The court agreed with the trial judge that these violations were prejudicial because "[t]he identity of Heird’s killer was the core issue at trial, with Bueno arguing that white supremacists had committed the murder," and the jury had taken four days to deliberate, including asking the court how to overcome a deadlock. The jury then imposed a life sentence, rejecting the death penalty in the case. In a 2010 interview with Westword after the trial court had overturned Bueno's conviction, Lane called it "truly stunning that the prosecutors in this case hid evidence that was so favorable to the defense" and said "it is particularly shocking in light of the fact that this was a death penalty case." A 2015 study showed significant racial and geographic disparities in the prosecution of death-penalty cases in Colorado, with non-white defendants and defendants in the 18th Judicial District statistically more likely to be capitally prosecuted. All three prisoners on Colorado's death row are from the 18th Judicial District. 18th District DA George Brauchler, who opposed the grant of a new trial in the case, is currently seeking election as Colorado's Attorney General.

Court Finds Prosecutorial Misconduct, but Allows Colorado Death Sentence to Stand

An Arapahoe County judge has denied the appeal of Colorado death-row prisoner Sir Mario Owens (pictured), despite finding that prosecutors withheld evidence and failed to disclose money, gifts, and favors they provided informants in exchange for their testimony. In a 1,343-page Order and Opinion issued on September 14, Senior Judge Christopher Munch found that county prosecutors had presented false evidence from two of their most critical witnesses and unconstitutionally withheld more than 20 separate pieces of evidence that could have helped the defense challenge the testimony of seven prosecution witnesses, but said a defendant "must establish more than helpfulness to sustain a claim of constitutional error." The ruling followed the controversial removal from the case of Senior Judge Gerald Rafferty, as the judge was preparing his decision after having presided over the case for more than a decade. Rafferty had ordered the prosecution to produce hundreds of pages of records and granted 37 weeks of hearings on what he had characterized as prosecutors’ “deliberate choice” to withhold evidence from the defense. Owens was sentenced to death in June 2008 for the 2005 shooting death of Javad Marshall-Fields (the son of a Colarado state representative) and Fields's fiancé, Vivian Wolfe. A co-defendant, Robert Ray, was separately tried and sentenced to death. The case against Owens was largely circumstantial. As described by news reports in The Colorado Independent, there was "no definitive physical evidence, no confession, and no eyewitnesses who identified Owens in a case prosecutors built almost entirely on the testimony of informant witnesses to whom the DA’s office gave plea bargains, funds, or both in return for their cooperation against Owens."  Owens alleged that the prosecution had withheld evidence from the defense that they had secured the testimony of cooperating informants by making thousands of dollars of cash payments and providing undisclosed favors in unrelated criminal cases. The Denver Post reported that one witness had been "promised and later given a district attorney’s office car" and another "received $3,400 in benefits, including cash for Christmas presents in the months prior to testifying on behalf of the prosecution." The Colorado Independent's review of court records reported that "one of the main witnesses [had been] threatened with being charged for the murders Owens was accused of and with receiving two life sentences" if he didn’t cooperate. Another witness had been granted an undisclosed suspended jail sentence conditioned upon cooperating with prosecutors in Owens’s case. "People working for the prosecution would appear at informant witnesses’ court hearings and ask for lesser sentences on the condition that they testify against Owens," the paper wrote, and "informants who had been convicted of crimes were allowed to violate probation and commit future crimes without consequences as long as they cooperated." Owens's appeal has attracted attention because it was the first in Colorado's "unitary review" process that had been billed as speeding up capital appeals. Instead, it has substantially increased the length of appeals. It also raised questions of transparency because of the extraordinary levels of secrecy throughout the proceedings. Court files were sealed and a gag order prevented the parties from speaking about the case for seven years, until the order was lifted in 2013. Numerous case exhibits remain under seal. Owens's lawyers issued a written statement saying “We disagree with the court’s conclusion that none of this matters and can be tolerated in Colorado in any case, never mind a capital one. This is a sad day for ... the Colorado criminal justice system.”

BOOKS: "The History of the Death Penalty in Colorado"

When University of Colorado Boulder sociology professor Michael Radelet began doing research on the death penalty in the 1970s, the noted death-penalty scholar tells Colorado Public Radio, he didn't have an opinion about capital punishment and "didn't know anything about it." After researching issues of race, innocence, and the death penalty, he came to have grave reservations. "I believe the death penalty is about making god-like decisions without god-like accuracy," he told Colorado Matters interviewer Andrea Dukakis. Radelet's latest book, The History of the Death Penalty in Colorado, chronicles the historic use of capital punishment in a state in which the practice is currently under scrutiny. Proponents and opponents of the death penalty both invoke "justice" in support of their positions, Radelet told Colorado Matters. "There's a debate about what 'justice' really means," he said, noting that Governor John Hickenlooper raised important questions about the fairness and accuracy of the death penalty when he imposed a moratorium on executions in Colorado in 2013. Commenting on the book, Hickenlooper said, "Professor Radelet reminds us we are not unique in asking whether our 'experiment with the death penalty' has worked: we have asked this question since our territorial days. The History of the Death Penalty is an insightful examination of the death penalty and whether it has a place in our state." Radelet's book documents each execution in the state since 1859 and explores the systemic concerns that have affected its implementation throughout Colorado's history. A Denver Post book review says: "In what could have been a dismal treatise, Radelet turns this fact-filled book into an absorbing history of Colorado’s flirtation with legal killing."

EDITORIALS: Colorado Newspapers Support Bill to Repeal Death Penalty

As Colorado's Senate Judiciary Committee considers SB 95—a bill that would replace the death penalty with life in prison without the possibility of parole—the editorial boards of The Denver Post and The Durango Herald have urged the legislature to end capital punishment in the state. Colorado's death penalty system "is broken beyond repair and needs to be repealed," wrote The Denver Post​​. Repeal, it said, "would save the state millions in both the prosecution and defense of murderers and an untold number of judicial man hours that have so infrequently resulted in death." The Post editorial also highlighted the unwillingness of Colorado juries to impose death sentences, noting that the highly-publicized capital cases of James Holmes and Dexter Lewis both resulted in life sentences. The Durango Herald editorial board also called for repeal, agreeing with the arguments advanced by Republican legislators in the neighboring mountain states of Utah and Nevada that the death penalty "is a failed public policy, is a waste of taxpayer dollars, the risk of executing innocent people is too high and it causes unnecessary harm to victims’ families." The Herald editorial also emphasized the high cost of capital punishment—quoting estimates by the American Civil Liberties Union of Colorado "that the average death penalty trial costs $3.5 million, compared to $150,000 for a trial for life without parole"—and that Colorado has had only one execution in 50 years. In 2013, citing arbitrariness and unfairness in the application of the state's death penalty, Governor John W. Hickenlooper granted a reprieve to Nathan Dunlop, one of three men on Colorado's death row.  A 2015 study published in the University of Denver Law Review subsequently showed that prosecutorial decisions to seek the death penalty in Colorado "depend[] to an alarming extent on the race and geographic location of the defendant." All of Colorado's death-row prisoners are African-American men from the municipality of Aurora. SB 95 would apply prospectively to future crimes, but would not affect the cases of the prisoners currently on death row. [UPDATE: After holding hearings on SB 95, the Senate Judiciary Committee voted 3-2 to defeat the bill. The vote effectively ends death penalty repeal efforts in the state for the 2017 legislative session.] 

EDITORIALS: New York Times Hails Prosecutors' Changing Views on Death Penalty

In a February 6 editorial, The New York TImes hails the reform efforts of the "new generation" of state and local prosecutors who are working to change the United States' criminal justice system, and especially the use of the death penalty. The Times highlights the comments of two newly elected local prosecutors, Beth McCann, the new prosecutor in Denver, Colorado, and Kim Ogg, the new district attorney in Harris County, Texas. McCann has said her office will not seek the death penalty because she does not think "that the state should be in the business of killing people." Ogg has pledged that there will be “very few death penalty prosecutions" during her tenure as district attorney. The Times also notes the leadership of state elected officials, pointing to Washington state, where current Democratic Attorney General, Bob Ferguson, and his Republican predecessor, Rob McKenna, are jointly supporting a death penalty repeal bill. "Prosecutors aren’t just seeking fewer death sentences; they’re openly turning against the practice, even in places where it has traditionally been favored," the editorial states, citing the historically low number of death sentences in 2016. Emphasizing the influence of these state and local officials, it calls the role of prosecutor, "one of the most powerful yet least understood jobs in the justice system." Their role is especially critical as national leaders present a "distorted ... reality of crime in America" in support of a "law and order" agenda, the Times says. "In these circumstances, the best chance for continued reform lies with state and local prosecutors who are open to rethinking how they do their enormously influential jobs."

Denver's Newly Elected District Attorney Says She Will Not Seek the Death Penalty

Newly-elected Denver, Colorado District Attorney Beth McCann (pictured), sworn into office on January 10, 2017, has said that her administration will not seek the death penalty. Asked by 9News, Denver's NBC affiliate, whether Denver was "done with the death penalty," McCann said: "We are under my administration. I don't think that the state should be in the business of killing people." McCann told 9News that alternative sentences provide sufficient punishment at a substantially lesser cost: "I believe that life without the possibility of parole ... gets to the punishment piece, but doesn't cost the taxpayers those millions and millions of dollars that could be used to prosecute other cases." McCann also said she would support repeal of the death penalty in Colorado. No Denver jury has sentenced a defendant to death since 1986 and, after a lengthy capital trial, a jury in August 2015 sentenced Dexter Lewis to life for the stabbing deaths of 5 people in a Denver bar. The state currently has a moratorium on executions. McCann's views are in line with those of many new district attorneys across the country. In the November 2016 elections, voters replaced prosecutors who had aggressively sought death sentences in Hillsborough County, Florida, Harris County, Texas, and Jefferson County, Alabama. In an August primary, voters in Duval County, Florida, ousted Angela Corey, one of the nation's most pro-death penalty prosecutors.

Colorado Law to Speed Up Death Penalty Appeals Has Faltered and Failed

Twenty years ago, frustrated by what they perceived to be the slow pace of capital punishment, Colorado legislators adopted a law to "fix" their death penalty by speeding up appeals. Proponents and opponents of the state's death penalty agree on one thing: the law hasn't worked. As The Denver Post reports, the state law intended to streamline the death penalty appeals process by imposing a two-year deadline for decision and consolidating direct appeals and post-conviction appeals into a "unitary" system of review has failed. Colorado's two death row prisoners affected by the law have spent more than seven years at the first step in the appeals process, with no ruling on their cases in sight. The 1997 law changed the order of death penalty appeals, putting the lengthier post-conviction appeal (involving new evidence and claims of ineffective representation or prosecutorial misconduct) first, before the direct appeal (which involves only issues that were raised by defense counsel at the time of trial). Once the trial court rules on the post-conviction appeal, the Colorado Supreme Court would review and resolve both appeals together, in a single "unitary" appeal proceeding. But while the law originally allowed "no extensions of time of any kind" in post-conviction appeals, a 2010 Colorado Supreme Court ruling allowed extensions to be granted under "extraordinary circumstances" necessary to protect a defendant's procedural rights. Death row inmates Robert Ray and Sir Mario Owens both received extensions. Seven years later, Owens' case has had an extensive evidentiary hearing, but the appeal may have to be redone because the state supreme court fired the judge presiding over the case just before he was expected to issue his ruling. Ray's post-conviction hearings have not yet begun. Christopher Decker, a Denver defense attorney, voiced concerns about whether a fast appeals system would adequately protect defendants' constitutional rights: “If they just speed up the process and strip everyone of due process, we’ll have a very fast outcome that will be worth nothing. It won’t stand up to constitutional review.” Jeanne Adkins, the former state representative who sponsored the 1997 bill to speed up appeals, said, "I’m almost to the point where I would say, ‘Let’s do away with it and save the taxpayers the money.'" Expressing frustration with the death penalty system, she says “[t]he death penalty has become so politicized, truthfully, in the last decade or so in Colorado that I really think that a lot of what the legislature tried to do may actually be pretty pointless now.” 

NEW VOICES: Retired Colorado Corrections Officer Raises Questions of Deterrence, Innocence

In a recent op-ed for The Denver Post, retired corrections officer and military veteran Pete Lister offered a critique of the death penalty, saying it fails as a deterrent, risks executing innocent people, and costs more than life without parole. "Capital punishment has not, in a single state, proven to be a deterrent to capital crime." Lister said. "Society consists of human beings who make mistakes. There are those who are, occasionally, negligent, and some who are even dishonest or unethical. We are faced with the troubling fact that if we, as a society, err in a capital case, the sentence is irreversible." Drawing on his experience as a corrections officer, Lister compared capital punishment to life without parole, saying, "involuntary incarceration is not the life of Riley that some would have you believe" and asking whether "life in prison without the hope of parole" may "actually [be] worse than a death sentence." Discussing the risk or error, he said, "When we, society, wrongfully convict someone, whether through malfeasance or neglect, or whether the technology extant at time of trial was insufficient to prove innocence, then we, society, have a responsibility to release him, to publicly acknowledge the error, and allow that citizen to move past the horror that we, society, have inflicted. How do we do that after we've put him to death?" Lister also noted that the cost of capital punishment, which he said "far exceeds the cost of incarcerati[on] even for life, ... is more than simply financial. It's been argued that voting for execution takes a terrible emotional toll on jury members." He concludes with a question: "Whether you believe the death penalty is justifiable, if you were the one being accused of a murder you had not committed, where would you stand on this issue?"

Pages