In a recent op-ed in the Denver Post, Colorado defense attor­ney David Lane argued that exam­ples of the state with­hold­ing impor­tant evi­dence in cap­i­tal mur­der cas­es should be grounds for recon­sid­er­ing the death penal­ty: ​“The death penal­ty in Colorado is a fatal­ly flawed gov­ern­ment pro­gram. The alter­na­tive is life with no pos­si­bil­i­ty of parole. Jurors for many years have expressed a pref­er­ence for that severe sanc­tion, which is actu­al­ly less cost­ly than the death penal­ty.” Lane cit­ed a recent rul­ing by the Colorado Court of Appeals affirm­ing the rever­sal of David Bueno’s first-degree mur­der con­vic­tion, in which a death sen­tence had been sought, because the state failed to turn over evi­dence about oth­er sus­pects. (Lane rep­re­sents one of the co-defen­dants in the case.) Neither of the pros­e­cu­tors respon­si­ble was dis­ci­plined for this breach of con­duct, and one has since been elect­ed the District Attorney of El Paso County. Lane also high­light­ed the cost to Colorado tax­pay­ers: “[B]ecause of the built-in costs for a death penal­ty case, like­ly over $1 mil­lion was wast­ed in a failed effort to kill Bueno.” Read the full op-ed below.

A reason to kill the death penalty in Colorado

By David A. Lane

Two weeks ago, for­mer Texas pros­e­cu­tor Ken Anderson began serv­ing a jail sen­tence for hav­ing hid­den evi­dence of inno­cence in a Texas death penal­ty case result­ing in the wrong­ful con­vic­tion of an innocent man.

That same week, the Colorado Court of Appeals affirmed the tri­al court in Lincoln County which threw out the first-degree mur­der con­vic­tion of David Bueno because deputy dis­trict attor­neys Rich Orman and Dan May failed to turn over com­pelling evi­dence of Bueno’s inno­cence to the pub­lic defend­ers rep­re­sent­ing him. Even worse, the whole time they were sit­ting on evi­dence of Bueno’s inno­cence, they were doing every­thing in their pow­er to kill him, hav­ing sought the death penal­ty against him and his co-defen­dant, Alejandro Perez, whom I represented.The opin­ion from the court sets forth the facts in detail. In a nut­shell, the pros­e­cu­tors had com­pelling evi­dence that oth­ers besides Bueno and Perez may have killed a fel­low prison inmate, and they failed to turn this over to the defense.

At the time they were vio­lat­ing their solemn oaths as pros­e­cu­tors to ​“seek jus­tice” and at the same time vio­lat­ing the law by not dis­clos­ing evi­dence of inno­cence, they were work­ing for Carol Chambers, the only pros­e­cu­tor in Colorado who was wild­ly in love with the death penal­ty. May is now the elect­ed DA in El Paso County and Orman is busy try­ing to see James Holmes executed.

In the mean­time, the new dis­trict attor­ney, George Brauchler, has done noth­ing about this find­ing of gross mis­con­duct. He has yet to make a pub­lic state­ment con­demn­ing the actions of his employ­ees and for­mer employ­ees. Indeed, it was his office that defend­ed the case in the Court of Appeals and attempt­ed to jus­ti­fy this mis­car­riage of justice.

The pub­lic should be out­raged that in Colorado, con­duct that is shock­ing even in Texas has been met with essen­tial­ly no response from our elected officials.

The Supreme Court of Colorado must begin an inves­ti­ga­tion, and an inves­ti­ga­tion should be under­tak­en by law enforce­ment, with a request for the FBI to get involved. If, after a full pub­lic air­ing of the evi­dence, these pros­e­cu­tors are found to have act­ed reck­less­ly, know­ing­ly or inten­tion­al­ly in hid­ing excul­pa­to­ry evi­dence, they should be dis­barred. There is no doubt that these pros­e­cu­tors vio­lat­ed the law as even they admit­ted that the evi­dence in ques­tion was both in their pos­ses­sion and nev­er dis­closed to the defense. If law enforce­ment believes there is prob­a­ble cause to believe they broke the law know­ing­ly, they should be pros­e­cut­ed and, if con­vict­ed, ulti­mate­ly jailed for their attempt to kill Bueno all the while know­ing that there was com­pelling evi­dence of his inno­cence they nev­er gave to the defense.

Bueno got con­vict­ed of mur­der, yet a Colorado jury reject­ed the DA’s request for the death penal­ty and sen­tenced Bueno to life with­out pos­si­bil­i­ty of parole. In the mean­time, because of the built-in costs for a death penal­ty case, like­ly over $1 mil­lion was wast­ed in a failed effort to kill Bueno.

The death penal­ty in Colorado is a fatal­ly flawed gov­ern­ment pro­gram. The alter­na­tive is life with no pos­si­bil­i­ty of parole. Jurors for many years have expressed a pref­er­ence for that severe sanc­tion, which is actu­al­ly less cost­ly than the death penalty.

Given the fact that the death penal­ty has been used once in Colorado since 1968; giv­en that we have spent tens of mil­lions on it; and giv­en that we are now con­fronting gross pros­e­cu­to­r­i­al mis­con­duct in its appli­ca­tion, isn’t it time to put this bar­bar­ic rel­ic of a bygone era to rest? This year, the state leg­is­la­ture needs to abol­ish the death penalty.

David A. Lane is a defense attor­ney in Denver.

(D. Lane, ​“A rea­son to kill the death penal­ty in Colorado,” Denver Post, December 7, 2013). See Arbitrariness and Costs. See Response Commentary, ​“Life Without Parole Isn’t Always Adequate,” Dec. 14, 2013.

Citation Guide