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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.”


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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."


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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.] 


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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."


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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.


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