Criminal Justice, Gold Dome

Beware biases in capital case analysis

Let Colorado’s latest death penalty trial begin.  It will be intense.  It’s a matter of life or death. There will be lots of media coverage and analysis.

Colorado Public Radio recently had a preview story titled, “Meet George Brauchler, the Man Prosecuting the Aurora Theater Shooter,” with this first sub-headline:

Political motivations to seek the death penalty?

This is seemingly well-calculated to help his (George Brauchler’s) political career,” said Dan Recht, a criminal defense attorney and former public defender.  

Recht says Brauchler, a Republican, could have accepted a plea of guilty, prevented a trial, saved millions of dollars and a lot of heartache.

“This will elevate his profile, his name recognition, his status as a conservative politician,” said Recht. “And increase the likelihood that he can win the conservative vote in Colorado when he runs for higher office.”

Wow! That is quite a damning accusation by Dan Recht

File photo - Todd Shepherd
File photo – Todd Shepherd

Reasonable people should be able to disagree about capital punishment. As a lawyer who supports Colorado’s death penalty, I am acutely aware that lots of lawyers have a different view. So do most journalists and the major newspapers in Aurora and Denver. So does recently reelected Colorado Governor John Hickenlooper.

Recht is a past president of the Colorado Criminal Defense Bar which makes plain its mission, including its own exclusionary rule (no death penalty proponents allowed): 

“The Colorado Criminal Defense Bar (CCDB) was founded on founded (sic) May 8, 1979. The CCDB is a group of criminal defense attorneys, private investigators, and experts who are dedicated to protecting the rights of the accused and is opposed to the death penalty.”

Many Colorado trial lawyers, including Arapahoe County DA George Brauchler, have practiced law just fine, including some criminal defense, without submitting to CCDB’s dogma on capital punishment.

Karen Steinhauser, an accomplished former Denver prosecutor, testified at the Capitol on March 9, 2013 in favor of repealing capital punishment, an effort strangely snuffed out by Hickenlooper. Chris Decker is a top lawyer with CCDB which wrote a May 8, 2013 letter to Governor Hickenlooper entreating him to commute Nathan Dunlap’s death sentence (he granted a reprieve).  Our Governor could stop this Aurora theater massacre trial any time by promising a commutation.

Karen Steinhauser has been a welcome guest on my radio show and I hope Chris Decker will be on soon.  These bright attorneys, along with Recht, are among the many lawyers who will be analyzing the Aurora theater massacre trial.  I too will be offering regular analysis from my broadcasting home at 710KNUS and for various other national and local media.

George Brauchler was elected DA in 2012 as a known supporter of capital punishment. The Aurora theater shooter killed 12 people and injured 70 others.  These killings were super-premeditated by an adult man apparently craving worldwide attention for his obscene body count, costuming, and vengeance against an unfair world. 

His sordid plan involved multiple killing fields and intent to slaughter scores of people. This defendant prepared to survive it all with his body armor and gas mask.  Once arrested and incarcerated, this mass killer wanted women to visit him in prison.  He wanted to be a big man.icon_op_ed

On a July, 23 2012 appearance on the O’Reilly Factor, I explained that the Aurora theater massacre case would boil down to two things; sanity and capital punishment.  No other defense was conceivable. And how could an Arapahoe county prosecutor not seek death if the defendant is sane? 

But another interesting issue has emerged, and it involves the victims’ desire that the defendant’s name not be publicized.  That is a reasonable request that should be respected, especially given the shooter’s evident quest for notoriety.

Anticipate further demonization of the DA outside and inside the courtroom. And don’t be surprised if and when invective is aimed at Judge Carlos Samour (a former Denver prosecutor). For some death penalty opponents, regular rules of professionalism must yield to the greater mission of battling capital punishment. 

Much of this long trial will be tedious, sad, and macabre. This defendant may well be found not guilty by reason of insanity given his bizarre behavior, appearance and activities.

The prosecution was apparently displeased with the report by state appointed psychiatrist Dr. Jeff Metzner who, along with defense retained mental health experts, may provide testimony supporting a defense verdict. In Colorado, unlike federal courts and most other states, once the affirmative defense of insanity is raised, the prosecution must prove sanity beyond a reasonable doubt. George Brauchler faces enough challenges without catcalls from lawyers over personal issues.

In the August 23, 2012 Denver Post, I wrote about the appropriateness of seeking capital punishment for the Aurora theater shooter.  That does not mean I necessarily support a conviction or death verdict. I will have to first hear the evidence and the experts.

I prosecuted only one person under Colorado’s capital punishment law and a Denver jury sentenced career criminal Frank Rodriguez to death.  Rodriguez was sentenced for his November 14, 1984 rape/robbery/murder of 54 year old Lorraine Martelli.  Chief Justice Bill Erickson wrote a powerful opinion rejecting Rodriguez’s appeal to the Colorado Supreme Court and reaffirming Colorado’s death penalty law.

Frank Rodriguez, who was represented by the Colorado State Public Defender, died on death row eighteen years after his crime.  The Associated Press reported that Rodriguez died from liver failure after possibly contracting hepatitis C.  His final appeal to the 10th Circuit Court of Appeals was pending. All the delays had allowed him to die a natural death. In that respect, I suppose the defense won.

Unless you count Tim McVeigh (a Denver tried federal case with a Colorado jury pool), Rodriguez is Denver’s only death verdict since the early 1960s. But that may change. Term limited Denver DA Mitch Morrissey is pursuing the execution of Dexter Lewis on the allegation he robbed, burned and stabbed to death five poor innocent tavern patrons on October 17, 2012.  However, Beth McCann and Michael Carrigan, two formidable candidates to succeed DA Morrissey, have come on my radio show and explained their principled opposition to capital punishment. 

So it is fine and in some circles, fashionable to oppose capital punishment, but it is important for news consumers to understand the perspectives of the people providing information and analysis. Remember this however — all the prospective jurors on this Aurora theatre massacre case who opposed capital punishment were excused for cause. The reason was simple. They could not follow Colorado law. Let’s all see how the law works here.

Craig Silverman is a partner in the downtown Denver law firm of Silverman & Olivas, specializing in personal injury law, criminal matters, and problem solving. He served for sixteen years at the Denver District Attorney’s Office where he was a Chief Deputy District Attorney. Craig has appeared hundreds of times on local and national media on number of wide-ranging topics and stories including the JonBenet Ramsey case, Columbine, the Oklahoma City Bombing trials, the Kobe Bryant case, and the Aurora movie theater massacre.  Craig Silverman has been a regular panelist for more than a decade on the award winning Colorado Inside Out on Colorado Public Television Channel 12, and he currently hosts The Craig Silverman Show on Saturdays (9-noon) on 710KNUS.


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