Colorado

Colorado

A Veterans Day Review: Recent Cases Highlight Concerns About Veterans and the Death Penalty

As Americans become increasingly aware of the role of combat trauma in the development of Post-Traumatic Stress Disorder (PTSD) and other mental health disorders, the shift in public perceptions towards veterans suffering from these disorders has played out in the courts in recent death penalty cases. In 2018, at least four military veterans facing death sentences have instead been sentenced to life in prison, and another two veterans won relief in their death-penalty cases. One military veteran has been executed so far this year.

In January, retired Marine Corps Lieutenant General John Castellaw (pictured) wrote in support of exempting mentally ill veterans from capital punishment, saying, "we can do better at recognizing the invisible wounds that some of our veterans still carry while ensuring they get the treatment that they deserve and that we owe them for their sacrifice. ...[W]e can do better by staying tough on crime but becoming smarter on sentencing those whose actions are impacted by severe mental illness." Prosecutors and juries in Indiana, Florida, Colorado, and Virginia have considered the military service and service-related disorders of murder defendants and determined that life sentences were more appropriate than the death penalty. In the Virginia trial of Iraq war veteran Ronald Hamilton, his attorneys presented evidence that he had been a model soldier who had saved the life of a fellow serviceman, but faced PTSD-related disorders and a deteriorating family life when he returned home. At Glen Law Galloway's trial in Colorado, Denver public defender Daniel King presented four days of testimony about Galloway’s character and background, including how the former Army veteran “snapped” following the collapse of his relationship with his girlfriend. King argued, “Mr. Galloway is not just the worst thing that he’s done. He’s committed many acts of kindness, friendship, service, love and duty.” In May, prosecutors withdrew the death penalty in exchange for guilty pleas in two unrelated cases involving military veterans Darren Vann in Indiana and Esteban Santiago in Florida. Santiago faced federal charges for a mass shooting, but prosecutors agreed to a plea deal because Santiago, an Iraq war veteran, suffers from schizophrenia and auditory hallucinations, had unsuccessfully sought treatment and assistance from the Veterans Administration, and had been committed to a mental hospital because of the seriousness of his mental illness.

Two death-sentenced prisoners were granted relief this year as a result of failures by their defense counsel to investigate and present mitigating evidence related to their military service and their service-related mental health disorders. Andrew Witt, an air force veteran who had been on U.S. military death row, received a life sentence after a court found his attorneys ineffective for failing to present mitigating evidence that he had suffered a traumatic brain injury. Robert Fisher's death sentence was reversed by a Pennsylvania federal court in part because his lawyer did not investigate or present evidence related to his service in Vietnam. Fisher was a Purple Heart recipient who struggled with brain damage, drug abuse, and mental health problems after his service.

On July 18, Ohio executed Robert Van Hook, an honorably discharged veteran who was suffering from long-term effects of physical and sexual abuse as a child and untreated mental health issues at the time of the offense. Van Hook had been unable to obtain care for his mental health and addiction issues from veterans service agencies after his discharge.

A 2015 report by the Death Penalty Information Center, Battle Scars: Military Veterans and the Death Penalty, estimated that approximately 300 veterans are on death row across the United States, many suffering from mental illness caused or exacerbated by their military service.

2018 Midterm Elections: Governors in Moratorium States Re-Elected, Controversial California D.A. Ousted

The results of the November 6, 2018 mid-term elections reflected America's deeply divided views on capital punishment, as voters elected governors who pledged not to resume executions in the three states with death-penalty moratoriums, defeated an incumbent who tried to bring back capital punishment in a non-death-penalty state (click on graphic to enlarge), and re-elected governors who had vetoed legislation abolishing capital punishment in two other states. Continuing a national trend, voters in Orange County, California ousted their scandal-plagued top prosecutor, marking the ninth time since 2015 that local voters have replaced prosecutors in jurisdictions with the nation's largest county death rows.

In the three states with Governor-imposed death-penalty moratoriums, candidates who said they would continue execution bans or work to eliminate the state’s death penalty won easily. Tom Wolf, the Democratic governor of Pennsylvania who imposed the state’s moratorium on executions in 2015, was re-elected by with 57.6% of the vote. His challenger, Scott Wagner, who had promised to resume executions and had advocated a mandatory death penalty for school shootings, trailed badly with 40.8% of the vote. Oregon's incumbent Democratic governor Kate Brown, who continued the state’s death-penalty moratorium instituted in 2011 by then-governor John Kitzhaber, won re-election in a six candidate field with 49.4% of the vote, five percentage points higher than her Republican challenger Knute Buehler. In Colorado, Democratic congressman Jared Polis, who campaigned on the repeal of the state’s death penalty, won the governorship with 51.6% of the vote, outpacing Republican state treasurer Walker Stapleton, who received 44.7% of the vote. Democrats also took control of both houses of the Colorado legislature, increasing the likelihood that legislation to abolish the death penalty will be considered in the upcoming legislative session. Illinois Republican Governor Bruce Rauner suffered an overwhelming election defeat at the hands of venture-capitalist J.B. Pritzker. Trailing badly in the polls, Rauner tried in May 2018 to condition passage of gun control legislation on reinstatement of the state’s death penalty. Pritzker outpolled Rauner by 54.0% to 39.3%.

On the other hand, two governors who prevented death-penalty repeal bills from going into effect in their states also won re-election. Nebraska's Republican Governor Pete Ricketts, who vetoed a bipartisan bill to abolish the state's death penalty in 2015 and then, after the legislature overrode his veto, personally bankrolled a successful state-wide referendum in 2016 to block the repeal, cruised to re-election with 59.4% of the vote. New Hampshire Republican Governor Chris Sununu, who vetoed the state’s death-penalty repeal bill in March 2018, won re-election with 52.4% of the vote. In Florida, Republican Ron DeSantis won the governorship against Democratic candidate Andrew Gillum, who had pledged, if elected, to suspend executions in Florida until he was sure the death-penalty system was nondiscriminatorily applied.

Local voters in Orange County replaced District Attorney Tony Rackauckas with a political rival, county supervisor Todd Spitzer. Rackauckas has been embroiled in a scandal involving the secret use of prison informants to obtain or manufacture confessions from suspects and then stonewalling investigation of the multi-decade illegal practice.  As of January 2013, Orange County had the seventh largest death row of any county in the U.S., and since then, it has imposed the fourth most death sentences of any county. 

Colorado Jury Returns Life Sentence in Third Consecutive High-Profile Death-Penalty Case

Colorado Springs jury rejected a death sentence for Glen Law Galloway (pictured), marking the third high-profile case since 2015 in which Colorado jurors have selected a life sentence over death. The verdict brought to an end El Paso County’s first capital prosecution in more than a decade, after a six-week trial in a courtroom with a $50,000 makeover that included new audio and video technology and a remodeled jury box enlarged to accommodate six alternate jurors. 2,800 potential jurors had received summonses to appear for service in the case. Prosecutors unsuccessfully attempted to portray Galloway as an unrepentent and remorseless killer who, in the words of El Paso District Attorney Dan May, had committed “two horrific homicides.” They claimed that Galloway had killed a homeless man, Marcus Anderson, to steal his truck and silence him as a witness, and then drove it to the house of his ex-girlfriend, Janice Nam, where he killed her to exact revenge for a stalking conviction. The jurors found Galloway guilty of premeditated murder in Nam's killing, but determined that Anderson’s murder had not been premeditated and acquitted Galloway of aggravated robbery, rejecting the prosecution’s contention that he had killed Anderson to steal his truck. The same defense team that represented Aurora movie-theater shooter James Holmes presented more than thirty witnesses in four days of testimony about Galloway’s character and background, describing to the jury how the former Army veteran “snapped” following the detoriation of his relationship with Nam. Defense attorneys presented mitigating evidence on Galloway's harsh upbringing and his life in the Army, followed by a career in microchip manufacturing. Denver public defender Daniel King, one of Galloway's attorneys, said Galloway was an otherwise law-abiding person who tragically lost control. “Mr. Galloway is not just the worst thing that he’s done,” King said. “He’s committed many acts of kindness, friendship, service, love and duty.” After five hours of deliberation, the jury found that the mitigating evidence in the case outweighed aggravating evidence and sentenced Galloway to life. Colorado juries had previously rejected death sentences for Holmes, who killed twelve people in a mass shooting, and Dexter Lewis, who fatally stabbed five people in a Denver bar. “Once again, a jury has told the government that seeking the death penalty is a waste of everyone’s time,” said Phil Cherner, a retired attorney and chairman of the board for Coloradans for Alternatives to the Death Penalty. Colorado has not imposed a death sentence since 2010, and has not executed a prisoner since 1997. Governor John Hickenlooper declared a moratorium on executions in 2013.

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."

Pages