Dem Legislature, Holmes Prosecutor on Death Penalty Collision Course

March 13, 2013

By the time prosecutors decide whether to seek the death penalty for James Holmes, capital punishment may be on the verge of being abolished in Colorado

CENTENNIAL–By the time prosecutors decide in the next few weeks whether to seek the death penalty for James Eagan Holmes, capital punishment may be on the verge of being abolished in Colorado.

That’s the schizophrenic scenario unfolding now as Democratic legislators move to challenge the state’s capital-punishment law even as Arapahoe County prepares to host what could become the most riveting death-penalty trial in the nation.

“I think capital punishment is teetering on the edge of extinction here in Colorado,” said former Denver Deputy District Attorney Craig Silverman.

State Rep. Claire Levy (D-Boulder) is expected to introduce a bill repealing capital punishment within the next week. Still unclear is whether the bill would apply to the three inmates now on Colorado’s Death Row or those now in the legal pipeline like Holmes.

Meanwhile, District Attorney George Brauchler said Tuesday that he would announce at the April 1 hearing whether the prosecution will seek the death penalty for Holmes. Elected in November, the Republican Brauchler ran on a platform in support of capital punishment.

Few doubt that he will pursue a death-penalty verdict. None of the inmates now on Death Row was convicted of killing more than four people, while Holmes is accused of murdering 12 moviegoers at the Aurora Century 16.

“I would expect the Arapahoe County District Attorney would seek capital punishment in this case,” said Silverman. “If James Holmes is not subject to capital punishment, then it’s hard to justify capital punishment for Nathan Dunlap, who killed four people and not 12.”

The Holmes case advanced Tuesday as Chief District Court Judge William Sylvester entered a plea of not guilty on the suspect’s behalf, overriding defense attorneys who said they needed more time.

Speculation had been rife that Holmes would enter an insanity defense, but attorney Daniel King said the legal team needed to complete a psychiatric evaluation and consider the legal ramifications of such a plea. The judge said the not-guilty plea could be changed later to not guilty by reason of insanity.

Holmes, 25, faces 166 counts of  murder, attempted murder and related charges stemming from the July 20 Aurora theater shooting, which left 12 dead and 58 injured. The trial could begin as early as Aug. 5, although that date is expected to be moved back.

By that time, capital punishment could be a thing of the past in Colorado. This year’s crop of Democratic lawmakers, fresh off high-profile legislative wins on civil unions, gun control and in-state tuition for illegal immigrants, have shown they’re not afraid to take political risks by tackling divisive issues.

With capital punishment, however, they may face opposition from one of their own. State Rep. Rhonda Fields (D-Aurora), a rising star in the Democratic Party, co-authored an article in February with Attorney General John Suthers calling for voters to decide on the death penalty.

Fields’ son Javad Marshall-Fields and his fiancee Vivian Wolfe were shot and killed in 2005. Their murderers are now on Death Row along with Dunlap.

“In the past, Coloradans have twice voted to keep capital punishment on the books and use it in limited circumstances,” said the article, which appeared Feb. 13 in The Denver Post. “The legislature should not ignore those votes. Rather, they should ask the citizens of Colorado about their current views on the death penalty.”

Fields and Suthers say they support placing a death-penalty repeal measure on the November 2014 ballot.

Sensing an opportunity, however, opponents of the death penalty are pushing for the legislature to strike now, while it has Democratic majorities in both houses and a Democratic governor. So far Gov. John Hickenlooper has not said whether he would support a repeal.

“We must act now!” said Coloradans for Alternatives to the Death Penalty in an action alert issued this week. “The Colorado legislature is preparing to consider a repeal of the death penalty in the coming days. Our allies will face intense opposition from those who want to prevent this important step.”

Republican legislators are expected to oppose a repeal, although party lines frequently blur in death-penalty debates. Pro-life Republicans have been known to oppose capital punishment, while blue-collar Democrats will often support it.

“I would not support a repeal of capital punishment in Colorado, and I would suspect there are Democrats who feel the same way,” said state Rep. Frank McNulty (R-Highlands Ranch).

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