Criminal Justice, Legal, National, Politics, Right To Arms

Analysis: Robert Dear vs 'Roe v Wade'

The criminal case of People of the State of Colorado v. Robert Lewis Dear will involve three primary accusations of First Degree Murder – After Deliberation and assorted other major charges. Lifetime incarceration likely awaits this 57 year old shooter. Even if capital punishment is sought and obtained, Dear would be well into his seventies or even his eighties by the time of his execution.

Republican Dan May is the elected prosecutor in Colorado’s conservative Fourth Judicial District. Despite horrific recent mass murder sprees in our state, no Colorado prosecutor has obtained a death verdict since Governor John Hickenlooper’s 2013 reprieve for Nathan Dunlap. After a change of venue, that Chuck E. Cheese killer was sentenced by a Colorado Springs jury to death for his murder of four people in 1993.

Numerous statutory aggravating factors necessary to obtain a Colorado death verdict exist in the Dear case including multiple murders and the killing of a peace officer. If DA Dan May does not seek capital punishment, it is unlikely Dear will plead guilty and accept life behind bars. Experienced death penalty defense attorneys from Colorado’s well financed state Public Defenders Office can be anticipated to defend Dear to the hilt.

Most public defenders are progressive and pro-choice. Dear will not be their favorite client but any such feelings will be set aside and every possible defense will be explored.   That will include arguments involving choice of evils and defense of others.

Under Colorado law, “a person is justified in using physical force upon another person in order to defend a third person from what he reasonably believes to be the use or imminent use of unlawful physical force by that other person, and he may use a degree of force which he reasonably believes to be necessary for that purpose. Deadly physical force may be used only if a person reasonably believes a lesser degree of force is inadequate and the actor has reasonable ground to believe, and does believe, that he or another person is in imminent danger of being killed or of receiving great bodily injury.”

Colorado’s choice of evils law provides that “conduct which would otherwise constitute an offense is justifiable and not criminal when it is necessary as an emergency measure to avoid an imminent public or private injury which is about to occur by reason of a situation occasioned or developed through no conduct of the actor, and which is of sufficient gravity that, according to ordinary standards of intelligence and morality, the desirability and urgency of avoiding the injury clearly outweigh the desirability of avoiding the injury sought to be prevented by the statute defining the offense in issue.”

We have heard that Dear referenced “no more baby parts” and it is easy to conceive this loner decided his violence was necessary to stop the killing of babies. El Paso County prosecutors will argue that a “defense of others” argument is inapposite because abortions going on at Planned Parenthood were not terminating the life of a person.

Expect the prosecution to prevail on this point. Under Colorado law, “person, when referring to the victim of a homicide, means a human being who had been born and was alive at the time of the homicidal act.” In 2009, even when an act of violence caused a Ceasarean section birth and an hour of life, the Colorado Court of Appeals ruled that the baby that died was not a person at the time of the homicidal act.

Responding to the Colorado Springs massacre, Republican Presidential candidate and former Arkansas Governor Mike Huckabee told CNN, “There’s no legitimizing, there’s no rationalizing. It was mass murder. It was absolutely unfathomable. And there’s no excuse for killing other people, whether it’s happening inside the Planned Parenthood headquarters, inside their clinics where many millions of babies die, or whether it’s people attacking Planned Parenthood.” When Governor Huckabee and his fellow pro-lifers refer to people and babies being killed at Planned Parenthood, does that rhetoric encourage people like Dear?



Colorado Governor John Hickenlooper thinks so and he too went on CNN to opine Dear’s violence was “a function of the inflammatory rhetoric we see on all — so many issues now, there are bloggers and talk shows where they really focus on trying to get people to that point of boiling over. Just intense anger. Maybe it’s time to look at how do we tone down that rhetoric.” It is not clear what kind of inflammatory talk radio Dear listened to in Hartsel, Colorado but in this digital age, anything is possible.

In Colorado’s neighboring state of Kansas, in 2009, Scott Roeder murdered abortionist Dr. George Tiller in a Sunday ambush at Tiller’s church. At Roeder’s trial, the judge refused to allow Roeder to assert choice of evils (necessity), defense of others or even argue for involuntary manslaughter based on Roeder’s belief as a Christian that he was saving persons from being killed by Tiller.

The Supreme Court of Kansas affirmed Roeder’s First Degree murder conviction and wrote the following, “Defense counsel argued that Roeder’s testimony established that he honestly believed that he had to kill Dr. Tiller when he did it to protect the unborn children that were in danger of imminent harm because of the abortions scheduled for the following day. The district court denied the instruction because the doctor was not engaging in any unlawful conduct at his abortion clinic and because “there [was] no imminence of danger on a Sunday morning in the back of a church.”

The Kansas Supreme Court determined that Roeder’s defense of others claim was not objectively reasonable where the perceived harm to be prevented would not occur until sometime in the future, i.e., where the other’s unlawful use of force against a third person was not imminent. Dear’s lawyers may argue that by attacking the actual clinic on a day when abortions were being performed, he has a better defense than Roeder. But Dear did not kill any abortionists which makes such a defense problematic and further unlikely to succeed.

This Dear case is the furthest thing from a whodunit. All the elements of first degree murder after deliberation will be easy to establish. Mental health defenses may be pursued but in the end, the defense has little choice but to argue that these killings were a choice of evils (necessity) and a reasonable defense of others. The main case standing in the way of this defense will be the one that pro-lifers hate the most – Roe v. Wade.

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.  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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