Vol. 30, No. 8
CBA Board of Governors' Resolution on a Death Penalty Moratorium: Two Viewpoints
A Response on Behalf of the Colorado District Attorneys’ Council
by Steven L. Bernard
Assistant District Attorney, Seventeenth Judicial District
On December 10, 2000, the Board of Governors of the Colorado Bar Association adopted a Resolution calling for a moratorium on the imposition of the death penalty until "each jurisdiction that imposes capital punishment" implements certain policies and procedures consistent with those promulgated by the American Bar Association. The Resolution is reproduced, in its entirety, above.
The Resolution reads that the Board of Governors . . . "takes no position on the death penalty, nor on the issue of whether the policies and procedures used in the State of Colorado adequately address the concerns expressed herein." In other words, the Board of Governors assumed that problems exist here with the imposition of capital punishment, but did not take a position on whether Colorado’s law solved them. Issuing the Resolution without investigating, and commenting upon, whether Colorado’s law solves whatever problems might exist was careless.
This response, divided into three segments, will show that the problems described in the Resolution are not to be found in Colorado. The first part summarizes each case of a defendant presently on death row, plus the case of Gary Davis, the first person executed in Colorado since 1967. The second section is a short history of the death penalty and a description of how the process works in this state. The third part analyzes the Resolution in light of Colorado law and the cases of the men on death row.
The Residents of Colorado’s Death Row
A description of each of the residents of death row follows.1
Gary Lee Davis
In July 1986, 41-year-old Gary Davis and his wife kidnapped a woman, Virginia May, in front of her children, drove her to a deserted field, and raped her to fulfill Davis’s sexual fantasy. Though she begged for her life, Davis struck May in the head with the butt of a rifle and then shot her fourteen times.
Davis testified at trial and admitted his guilt. He was no stranger to the criminal justice system, being on parole for a 1982 first-degree sexual assault conviction at the time of the murder. Davis also had three other felony convictions: grand larceny in Kansas in 1970; a 1971 Kansas burglary; and felony menacing in Colorado in 1979.
Davis was convicted and sentenced to die in 1987. He was put to death by lethal injection in October 1997.2
In the summer of 1993, 19-year-old Nathan Dunlap shot five people in the course of robbing a Chuck E. Cheese restaurant in Aurora. Four of them died. The sole survivor identified Dunlap as the gunman. Dunlap had recently been fired from his job as a cook at the restaurant.
Dunlap exulted in killing his victims, bragging about his crimes and fashioning a jail tattoo memorializing the murders. He had been involved in a series of armed robberies and a shooting attempt on a school rival before he committed the quadruple homicide. He also attempted to escape after he was arrested for the murders.
The Colorado Supreme Court unanimously affirmed Dunlap’s death sentence, finding there was no question regarding his guilt.3 Dunlap’s case is currently undergoing post-conviction review.
Robert Eliot Harlan
Robert Harlan raped a stranger, a woman named Rhonda Maloney, at gunpoint for two hours during a snowy, early morning in February 1994. After Maloney escaped from him and flagged down a passing motorist, Harlan chased them, firing shots at them from his car. One of the bullets severed the motorist’s spine, rendering her a paraplegic. Maloney was taken screaming from the car. Over the next few hours, Harlan beat her savagely and finally killed her by shooting her in the head. Harlan was linked to Maloney’s murder by overwhelming evidence, including eyewitness identification, DNA testimony, and his own statement to the police, in which he admitted being with the victim just before the "Good Samaritan" picked her up.
Harlan, about 30 years old at the time of the murder, was a drug dealer. He had sexually abused women before. He once told his ex-wife that he drove around at night looking for women walking alone so that he could think of ways to rape and kill them and get away with it. The Colorado Supreme Court affirmed Harlan’s conviction and sentence in 2000, and his petition for a writ of certiorari was recently denied by the U.S. Supreme Court.4
Francisco Martinez, Jr.
Along with fellow gang members, Francisco Martinez, Jr. beat, raped, and sodomized a 14-year-old girl. While other gangsters held her in place in the back seat of a car, Martinez stabbed her numerous times and then strangled her. At a turn-out in Clear Creek Canyon, the girl was dragged out of the car, stabbed some more and then thrown, still alive, onto some boulders lining the riverbank. The girl bled to death, having been stabbed twenty-eight times.
An uninvolved eyewitness testified about Martinez’s extraordinarily brutal treatment of the girl during the sexual assaults. There was also physical evidence and the testimony of other gang members.5
Martinez had a juvenile adjudication for assault in 1989, a conviction for possession of a controlled substance in 1992, and a conviction for theft from a person in 1994. He was on parole for that offense at the time of the murder. Martinez also had a 1997 conviction for aggravated robbery. He shot two men in 1993. His appeal is presently pending before the Colorado Supreme Court.
William "Cody" Neal murdered three women with a maul, a wood-splitting tool, over a period of several days in the summer of 1998. Neal made a fourth woman watch while he murdered the third one. Then he raped the fourth woman. He recorded the details of his murder spree on a tape machine and left the recording with the fourth woman.
Although Neal had never been convicted of any crimes, he had a significant history of misconduct. He had abused and killed animals. He molested his sister. He admitted he was a con man. He said he wanted to kill thirty more people, some in particularly torturous ways. Neal warned the police to keep him in isolation because he would kill anyone who bothered him in prison. He added he would find a way to get out of prison and kill those who had crossed him. He described himself as a predator.
Neal pled guilty to all of the charges, including three counts of first-degree murder. He claimed he was remorseful and wanted to spare the victims’ families any more pain. At the sentencing hearing, Neal asked the three-judge panel to spare his life and presented mitigating witnesses in his own behalf. He was sentenced to death for each of the murders.6
Frank D. Rodriguez
On November 14, 1984, Frank Rodriguez, his brother and two other people kidnapped a woman, Lorraine Martelli, as she walked from work, forced her into her own car and drove off. Rodriguez raped her, beat her, sodomized her in the back seat and then stabbed her twenty-eight times with a folding knife.
An eyewitness saw Martelli’s abduction. One of the co-defendants described Rodriguez’s principal role in Martelli’s death. There were letters Rodriguez had written to his girlfriend from jail awaiting trial in which he admitted killing Martelli. Blood consistent with Martelli’s was found on Rodriguez’s underwear, jacket, and jeans.
Rodriguez raped and sodomized another woman in 1978. Ten days before Martelli’s murder, Rodriguez shot a man four times in the head during an attempted robbery so the man would not be able to identify him later. Rodriguez had previously been convicted of three felonies: aggravated robbery, second-degree burglary, and attempted second-degree burglary. He was on parole at the time of the murder.
Rodriguez did not contest the jury’s findings of guilt in his direct appeal. His case is pending in the Tenth Circuit Court of Appeals.7
George Woldt and his friend, Lucas Salmon, shared a fantasy about kidnapping, raping, and murdering a stranger. They carried out this plan in April 1997, abducting a woman from in front of an apartment house. She was raped, beaten, stabbed repeatedly, and suffocated. Woldt confessed.
About a year before the murder, Woldt told an acquaintance about his desire to kidnap, rape, and kill a girl. There were variations on this theme, including one in which Woldt wanted to rape a woman in front of her boyfriend and then kill both of them.8 Woldt’s case is pending before the Colorado Supreme Court.
The Death Penalty in Colorado
Capital punishment was authorized in territorial times, as early as 1861.9 The first state legislature authorized the death penalty for certain crimes.10 The imposition of the death penalty was upheld in early Colorado Supreme Court decisions.11
The issue of whether Colorado should have a death penalty has been submitted to the voters at least twice over the years. Both times, the people voted, by large margins, in favor of maintaining the death sentence as a possible punishment for some cases.12 The second of these ballot measures appeared in 1974 after the U.S. Supreme Court decided, in Furman v. Georgia, 408 U.S. 238 (1972), that certain capital punishment schemes were constitutionally flawed. Furman did not hold that capital punishment was unconstitutional per se. When the Court again looked at capital punishment, in 1976, it found that the death penalty was not unconstitutionally cruel and unusual punishment under the Eighth Amendment.13
Colorado’s first post-Furman statute was struck down because it did not allow a convicted murderer an adequate opportunity to offer mitigating evidence that might convince a judge or a jury to spare him.14 Changes were made in 1979 that were eventually upheld as constitutional by the Colorado Supreme Court.15
The death penalty can only be sought as punishment if a defendant is convicted of a class one felony, which means, for all practical purposes, first-degree murder.16 There are only two possible punishments for first-degree murder: death and life imprisonment.17 For crimes committed on or after July 1, 1990, "life imprisonment shall mean imprisonment without the possibility of parole."18
Death penalty cases have two parts. There is a "guilt phase," in which the finder of fact determines whether the defendant is guilty of first-degree murder. If the defendant is convicted of first-degree murder, there will be a "penalty phase," at which it is decided whether the defendant will be sentenced to death or life imprisonment. In making this decision, the legislature directs the sentencing body to consider all of the evidence relevant to the crime and the defendant’s "character, background and history."19
The legislature has established "aggravating factors" that make a defendant eligible for a death sentence. The use of aggravating factors narrows "the categories of murders for which a death sentence may ever be imposed" and, by doing so, begins the process of defining "the class of defendants eligible for imposition of the death penalty."20 The legislature has established fifteen of these factors, including, for example, committing the murder in an "especially heinous, cruel, or depraved manner."21
There are also enumerated mitigating factors. To be constitutional, a death penalty statute must allow the sentencing body to consider "any aspect of a defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death."22 Mitigating evidence has been described as "circumstances which do [not] constitute a justification or excuse for the offense in question, but which in fairness or mercy may be considered as extenuating or reducing the degree of moral culpability."23 Some of those statutory factors include the defendant’s age at the time of the crime, the influence of drugs or alcohol, and "any other evidence which in the court’s opinion bears on the question of mitigation."24
The statute contains a four-step process for analyzing aggravating and mitigating factors.25 The sentencing body must decide whether at least one aggravating factor has been proved beyond a reasonable doubt. If not, the process stops and the defendant will be sentenced to life imprisonment. If so, the sentencing body next decides whether any mitigating factors exist. There is no burden of proof assigned to establishing the existence of mitigating factors. In step three, the sentencer must decide whether mitigating factors found to exist outweigh any aggravating factors found to exist. If they do, or if there is reasonable doubt whether they do, the process stops and the defendant will be sentenced to life imprisonment. If, beyond a reasonable doubt, the mitigating factors do not outweigh the aggravating ones, the sentencer moves to step four to determine whether the defendant should be sentenced to death or life imprisonment. To sentence a defendant to death, the sentencing body must unanimously find, beyond a reasonable doubt, that death is the appropriate punishment.26
Juries made these determinations until 1995. A three-judge panel, including the trial judge, conducts the sentencing hearings in death penalty cases for crimes committed on or after July 1, 1995.27 The procedure now involves a trial on a defendant’s guilt, before either a judge or a jury. If, and only if, the defendant is convicted of first-degree murder, the case proceeds before the panel to determine the sentence.28 The panel must agree unanimously before a death sentence can be imposed; otherwise, the sentence will be life imprisonment.29
If a death sentence is imposed, there is a mandatory appeal to the Colorado Supreme Court. In addition to evaluating the case for any reversible error, the Supreme Court must also analyze the "propriety" of the sentence, looking at: the nature of the offense; the character and record of the defendant; the public interest; and the way in which the sentence was imposed, including the "sufficiency and accuracy of the information on which it was based." A death sentence will not be upheld if the Supreme Court finds that the death penalty was imposed "under the influence of passion or prejudice or any other arbitrary factor or that the evidence presented does not support the finding of statutory aggravating circumstances."30
Review of habeas corpus petitions in death penalty cases in the federal system is now covered by the Antiterrorism and Effective Death Penalty Act of 1996.31 That statute also requires the appointment of competent counsel and creates time limitations. The last step in the process before an execution involves a request for a commutation of sentence from the Governor.32 The mode of execution in Colorado is lethal injection.33
The ills described in the Resolution do not exist in Colorado. As the summaries of death row inmates indicate, there is no doubt about the criminal responsibility of any defendant who is now on death row. Only the guilty reside there. The death penalty is reserved for the worst of the worst. The prosecution only seeks the death penalty in a small percentage of all of the murders committed in Colorado, and the death penalty is actually imposed in fewer cases still.
Experienced attorneys represent defendants in capital cases: there are at least two, and often three, lawyers on the defense team. Gary Davis’s lead defense attorney had defended people in thirty-eight murder trials, including seven capital cases. One of Francisco Martinez’s lawyers is now the head of the Colorado public defender office, and one of his appellate lawyers is a former justice of the Colorado Supreme Court. A past chief appellate public defender represented Nathan Dunlap on appeal.
Colorado has a well-funded public defender system that has developed substantial expertise in defending death penalty cases.34 In 1996, the legislature created the Office of Alternate Defense Counsel ("ADC") to represent indigent clients when the public defender has a conflict of interest.35 Some members of the ADC are well versed in trying capital cases.
They also have been successful. For example, since the three-judge panel system was established in 1995, there have been eight sentencing hearings. Three of the defendants have been sentenced to death; five have not. This ratio does not suggest a defense bar that is unprepared, inexperienced, unmotivated, inattentive, or ineffective.
The judiciary has maintained its independence. Three-judge panels do not automatically impose death sentences. The Colorado Supreme Court has not been reluctant to overturn death verdicts when it has concluded there were compelling reasons.36
There is an extraordinary amount of review of capital cases before the penalty is imposed. A jury determines guilt. A jury used to determine the punishment; now a three-judge panel decides—and unanimity is still required. The Colorado Supreme Court reviews the trial and any post-conviction issues. Then, under a habeas corpus action, a federal district court’s review is followed by an appeal to the Tenth Circuit Court of Appeals. Petitions for writs of certiorari can be filed with the U.S. Supreme Court to review the decisions of either the Colorado Supreme Court or the Tenth Circuit Court of Appeals. Requests for commutation of sentence can be made of the Governor.
This is the ultimate in due process and the antithesis of the "rush to judgment" that critics claim infects the capital sentencing system. It took slightly over ten years from the date of his conviction for Gary Davis to be executed. Frank Rodriguez was sentenced to death in 1986, and his appeal is still pending before the Tenth Circuit Court. Rather than suggesting a system with its wheels greased to speed innocent defendants to their deaths, these figures show that the delay between sentence and punishment is, if anything, too long.
There has been no indication that issues of race have infected any death row cases. In fact, it appears that precautions have been taken to avoid the poisonous effects of racism. For example, in the case of Robert Harlan, an African American, a unanimous Colorado Supreme Court found racial prejudice did not "undermine the fairness of the proceedings."37
Finally, the minimum age for a person to be eligible for the death penalty in Colorado is 18.38 Defendants found to be mentally retarded cannot be sentenced to death.39
This point-by-point analysis of the Resolution leads to several conclusions. First, the residents of Colorado’s death row were all guilty of murder; the proof of their guilt was overwhelming. Second, they committed stunningly horrific crimes deserving of capital punishment. Third, experienced and zealous lawyers represented them, both at trial and on appeal. Fourth, a reading of any of the foregoing opinions will show that courts have given these defendants vigorous, extensive attention. Therefore, the reasons behind the call for the moratorium are not found in Colorado.
It is one thing to call for a moratorium on the death penalty because one fears, based on evidence, that there are inequities in its imposition. It is quite another thing to dress up the wolf of unqualified opposition to the death penalty in the sheep’s clothing of the language of a moratorium, knowing that the inequities claimed to be seen elsewhere do not exist here.
The Board of Governor’s endorsement of the moratorium was ill advised for precisely that reason. Because Colorado does not have the problems the Resolution described, approving the moratorium provided an opportunity for death penalty opponents to use the Colorado Bar Association’s prestige to boost their efforts to abolish capital punishment. By permitting this, the Bar Association has become embroiled in the kind of political debate it should avoid. The Bar Association should wake up to the fact that it has been badly used and repeal this unwise and unwarranted Resolution.
1. Several other men have been sentenced to death, but their death sentences were not carried out for a variety of reasons unrelated to whether they were guilty. See People v. District Court, 586 P.2d 31 (1978) (defect in death penalty statute); People v. Durre, 690 P.2d 165 (Colo. 1984), conviction affirmed in People v. Durre, 713 P.2d 1344 (Colo. App. 1985), cert. denied (1986); People v. Drake, 748 P.2d 1237 (Colo. 1988) (conviction affirmed); People v. O’Neill, 803 P.2d 164 (Colo. 1990) (conviction affirmed); People v. White, 870 P.2d 424 (Colo. 1994), cert. denied, 513 U.S. 841 (1994) (conviction and death sentence affirmed; awaiting stipulated resentencing hearing because one law enforcement officer failed to provide the prosecution and, therefore, the defense with discovery). One man, Johnny Arguello, committed suicide before his appeal could be resolved.
2. The Colorado Supreme Court affirmed Davis’s death sentence on direct review. People v. Davis, 794 P.2d 159 (Colo. 1990), cert. denied, 498 U.S. 1018 (1991). The trial court, Colorado Court of Appeals, and Colorado Supreme Court all found that Davis’s motion for post-conviction review lacked merit, including Davis’s claim that his trial lawyer had been ineffective. People v. Davis, 849 P.2d 857 (Colo.App. 1992), affirmed, Davis v. People, 871 P.2d 769 (Colo. 1994). A federal district court judge denied Davis’s petition for a writ of habeas corpus, the Tenth Circuit Court of Appeals affirmed and the U.S. Supreme Court again denied a petition for a writ of certiorari. Davis v. Executive Director, 891 F.Supp. 1459 (D.C. Colo. 1995), affirmed, Davis v. Zavaras, 100 F.3d 750 (10th Cir. 1996), cert. denied, 520 U.S. 1215 (1997). Governor Roy Romer denied Davis’s request for executive clemency.
3. People v. Dunlap, 975 P.2d 723 (Colo. 1999), cert. denied, 120 S.Ct. 221 (1999).
4. People v. Harlan, 8 P.3d 448 (Colo. 2000), cert. denied, 121 S.Ct. 1618, 149 L.Ed.2d 481 (4/16/01).
5. People v. Francisco Martinez, Jr., Sentencing Determination and Order, Jefferson County Crim. Act. No. 97CR1699 (May 27, 1999).
6. People v. William Lee Neal, Order, Jefferson County Crim. Act. No. 98CR2526 (Sept. 29, 1999).
7. The Colorado Supreme Court affirmed Rodriguez’s death sentence and the U.S. Supreme Court denied review. People v. Rodriguez, 794 P.2d 965 (Colo. 1990), cert. denied, 498 U.S. 1055 (1991). The Colorado Supreme Court affirmed the trial court’s decision to deny Rodriguez’s post-conviction motion for relief, which included the claim that his attorneys had been ineffective. People v. Rodriguez, 914 P.2d 230 (Colo. 1996). The federal district court denied Rodriguez’s petition for a writ of habeas corpus. Rodriguez v. Zavaras, 42 F.Supp.2d 1059 (D.C. Colo. 1999). His appeal from this decision is pending before the Tenth Circuit Court of Appeals.
8. People v. George Woldt, Sentencing Order, El Paso County, Crim. Act. No. 97CR1563 (Sept. 6, 2000).
9. Colorado Legislative Council, An Analysis of 1966 Ballot Proposals, Research Pub. No. 110 at 32; General Laws, Ch. XXII, Criminal Code at 198, § 20 (1868).
10. General Laws, XXIV, Div. IV, § 615, Criminal Code (1877).
11.Smith v. People, 1 Colo. 121 (1869).
12. Davis, supra, note 2 at 171 (1990 case).
13. Gregg v. Georgia, 428 U.S. 153 (1976).
14. District Court, supra, note 1.
15. Davis, supra, note 2 (1990 case).
16. The other class one felonies in Colorado are (1) first-degree kidnapping, contrary to CRS § 18-3-301, in which the person kidnapped suffers serious bodily injury, but the death penalty cannot be sought if the person kidnapped is "liberated alive prior to the conviction of the kidnapper"; and (2) treason against the State of Colorado, contrary to CRS § 18-11- 101.
17. CRS § 18-1-105(1)(a).
18. CRS § 18-1-105(4). For crimes committed between July 1, 1985, and July 1, 1990, life imprisonment meant imprisonment without the possibility of parole for forty calendar years.
19. CRS § 16-11-103(1)(b).
20. Dunlap, supra, note 3 at 735.
21. CRS § 16-11-103(5)(j).
22. Lockett v. Ohio, 438 U.S. 586, 604 (1978).
23. Rodriguez, supra, note 7 at 987 (1990 case).
24. CRS § 16-11-103(4)(a), (i) and (l).
25. CRS § 16-11-103(2).
26. People v. Tenneson, 788 P.2d 786, 791-792 (Colo. 1990); Dunlap, supra, note 3.
27. 1995 Sess.Laws 1290-1294; CRS § 16-11-103(1)(a).
28. C.R.Crim.P. 32.1.
29. CRS § 16-11-103(2)(a) and (d).
30. CRS § 16-11-103(6); C.A.R. 4(d)(1).
31. 28 U.S.C. §§ 2262 et seq.
32. Colo. Const. Art. IV, § 7; CRS §§ 16-17-101 et seq.
33. CRS § 16-11-401.
34. CRS §§ 21-1-101 et seq.
35. CRS §§ 21-2-101 et seq.
36. Supra, note 1.
37. Harlan, supra, note 4 at 500.
38. CRS § 16-11-103(1)(a).
39. CRS §§ 16-9-401 et seq. and 16-11-103(1)(a).
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