AURORA | Colorado’s little-used death penalty could apply in nearly every first-degree murder case in the state but is used so arbitrarily it may be unconstitutional, a recent report concluded.
The report, conducted by three law professors at the request of lawyers representing a convicted murderer who could face the death penalty, looked at every murder in Colorado from 1999 to 2010.
University of Denver law professor Justin Marceu, one of the report’s authors, said that in 92 percent of first-degree murder cases over that stretch, prosecutors could have sought the death penalty. But prosecutors sought the death penalty just 15 times, and only two men were sentenced to death, Robert Ray and Sir Mario Owens, convicted of killing an Aurora murder witness and his fiancee in 2005.
That’s because Colorado law requires that just one of eight aggravating factors be met — including prior felony record, attacking a witness, or killing a child — for prosecutors to seek the death penalty.
Marceau said that courts have ruled prosecutors must have a narrow set of guidelines when it comes to seeking the death penalty. If capital punishment is handed down in an arbitrary way, it could violate the Eighth Amendment, which bans cruel and unusual punishment.
“You can’t really guess what cases will get it or not,” he said.
All three people on Colorado’s death row — Ray, Owens and Nathan Dunlap, convicted of killing four at an Aurora Chuck E. Cheese in 1993 — are from Aurora. And local prosecutors could seek the death penalty against James Holmes, the man accused of opening fire in an Aurora movie theater last month, killing 12 and wounding 58 in one of the worst shooting rampages in the country’s history.
Marceau published the report along with DU professor Sam Kamin and Wanda Foglia, a professor at Rowan University.
Lawyers for Edward Montour commissioned the report and have entered into evidence in Montour’s criminal case.
Montour was convicted of killing a prison guard in 2002 and later sentenced to death. The Colorado Supreme Court overturned his death penalty but prosecutors are seeking to have it reinstated.
A spokeswoman for the District Attorney’s Office in the 18th Judicial District — which prosecuted the Ray, Owens and Dunlap cases and is also prosecuting Montour and Holmes — did not immediately respond to a request for comment.