Criminal Justice, Legal, National

Legal analysis: The Death Penalty and Robert Dear

Prison Cell Bed closedI wrote last weekend of some thoughts likely running through District Attorney Dan May’s mind as he contemplates seeking capital punishment against alleged Planned Parenthood shooter Robert Lewis Dear. Here are some more.

Three black men who committed their murders before age 21 are the only current occupants of Colorado’s Death Row. This defendant Dear is an older Caucasian. His victims were from a variety of races.

Death penalty defenders argue the capital punishment system is racist and based on the race of the perpetrator and/or his victims. Those arguments are contradicted here. If you don’t seek capital punishment against an older white guy shooting people of color, how can you do so against a younger person of color?

Not only will Dear’s desire to end abortion likely be litigated as part of his defense to the murder charges, it may be utilized at any death penalty sentencing phase. Colorado’s death penalty law sets forth a statutory mitigating factor as follows:

  • The good faith, although mistaken, belief by the defendant that circumstances existed which constituted a moral justification for the defendant’s conduct;

As opposed to a pro-choice jurisdiction such as Denver or Pueblo or Boulder, would an El Paso County juror be more receptive to this defense argument? That may mitigate against an attempt at a change of venue. Plenty of Colorado Springs conservatives may agree with State Representative JoAnn Windholz who believes Planned Parenthood incited the violence. Or they may have voted for State Representative Gordon Klingenschmitt who accuses Planned Parenthood of a Holocaust.

Other statutory mitigating factors that might play out in a Dear death penalty case that should be considered include include:

  • The age of the defendant at the time of the crime; or
  • The defendant’s capacity to appreciate wrongfulness of the defendant’s conduct or to conform the defendant’s conduct to the requirements of law was significantly impaired, but not so impaired as to constitute a defense to prosecution; or
  • The defendant was under unusual and substantial duress, although not such duress as to constitute a defense to prosecution; or
  • The defendant could not reasonably have foreseen that the defendant’s conduct in the course of the commission of the offense for which the defendant was convicted would cause, or would create a grave risk of causing, death to another person; or
  • The emotional state of the defendant at the time the crime was committed; or
  • The absence of any significant prior conviction; or
  • The extent of the defendant’s cooperation with law enforcement officers or agencies and with the office of the prosecuting district attorney; or
  • The influence of drugs or alcohol

Robert Dear surrendered to law enforcement but not till he had shot several of its members. That surrender was premeditated and demonstrated Dear’s desire to live. This defendant could have pointed his weapon at peace officers and been shot to death instantaneously, but he chose life.

At least capital punishment remains in the arsenal of the El Paso County prosecutor. There are more progressive jurisdictions in Colorado (also with Planned Parenthood facilities) where prosecutors have declared rigid opposition to capital punishment.

Dan May has some time to think about all this and it could be that a plea bargain will happen sooner rather than later. Charges will be filed by December 9 and a preliminary hearing to determine probable cause will be set. After that preliminary hearing is when the defendant will be asked to enter a plea and if that plea is not guilty, Dan May will have nine weeks to announce whether capital punishment will be sought.

The Office of the State Public Defender has entered its appearance and will do everything it can to save Dear even if he is despicable. Smart money says Dear will die in prison, but not via execution by the state of Colorado.

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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