27 August 2015

Denver Jury Declines To Impose Death Penalty

A Denver jury which convicted Dexter Lewis of the first degree murder and robbery of five people at Fero's Bar in October of 2012 and of arson in connection with the burning down of the bar afterwards, has declined to impose the death penalty.  (I was in that jury pool, but not selected to serve). Therefore, Mr. Lewis will be sentenced to life in prison without possibility of parole on the murder counts, in addition to some additional meaningless term of years for the robbery and arson counts.

The jury had found in the first phase of its death penalty deliberations that aggravating factors were present, but after two and a half hours of the second phase of its death penalty deliberations, this jury announced that there was not unanimous support for the proposition that the aggravating factors outweighed the mitigating factors in the case. The jurors did not elaborate further on their reasoning.  If the jurors had ruled otherwise, a third phase of deliberations regarding whether or not the death penalty should be imposed would have followed. A variety of mitigating factors, most related to a troubled upbringing for Lewis, were suggested to the jury, but we will never know which ones actually persuaded the jury in the Fero's Bar case unless a juror comes forward to tell that story at a later date.

One of the other participants in the Fero's Bar massacre pleaded guilty to first degree murder and was also sentenced to life in prison without the possibility of parole.  Another of the participants pleaded guilty to second degree murder and received a very long prison sentence, but not a life sentence, and testified at the trial.  A third participant, who was an undercover Bureau of Alcohol, Tobacco, Firearms and Explosives informant was not arrested and has not been charged with a crime also testified against Lewis at the trial.

The Aurora Theater Shooting Trial Compared

This follows close on the heels of the decision not to impose the death penalty on James Holmes by an Arapahoe County jury in the Aurora Theater shooting trial, after convicting him of 12 counts of first degree murder for which the penalty was life in prison without possibility of parole, in addition to several thousand years of meaningless sentences on other counts.  The jury rejected the insanity defense for Holmes, but his mental illness was a key mitigating factor for the juror who ultimately decided that the death penalty should not be imposed in his case.  The Aurora Theater Shooting trial jury reached its conclusion in the third phase of deliberations, during which one juror decided strongly not to impose the death penalty, two jurors were undecided, and nine other jurors would have imposed the death penalty.

Personal Connections

I was a now and then patron of Fero's Bar before the massacre there in 2012, and was also a now and then customer of the Aurora Theater where James Holmes committed his massacre.  I routinely drive by the Chuck-E-Cheese where death row inmate Nathan Dunlap committed his crime, although I've never been a patron of that establishment.  I have no person connections to the double murder that put the other two people on death row in Colorado.  I likewise have no personal connection to the Oklahoma City bombing.

The Death Penalty In Colorado's State Courts

No other death penalty cases are currently pending in Colorado at this time.  Some pundits have argued that the two refusals to impose the death penalty in these cases which were particularly heinous, suggest that no case is heinous enough to warrant the death penalty in Colorado.  Others see individualized grounds for mercy in these cases that don't have a wider policy implication.

There are three people on death row in Colorado at this time in connection with two different incidents as I note in my post on jury duty linked above.  There are also 374 people in Colorado (before Holmes and Lewis were sentenced) who are serving life without possibility of parole sentences for first degree murder offenses that would have been death penalty eligible (although the death penalty was not even sought in most of those cases).
Governor Hickenlooper has suspended enforcement of the death penalty indefinitely against the one Colorado death row inmate whose appeals have run out (Nathan Dunlap who is black, murdered four people, all white, in a Chucky Cheese restaurant in 1993 or 1994, and was convicted in 1996).  All three men on death row in Colorado right now are there for offenses committed in Arapahoe County. 
The other two, both of whom were African-American, were involved in the murder of two people in an effort to prevent testimony against one of them from being presented at a criminal trial much more recently (one was convicted in 2008 and the other was convicted a few months later); both victims were African-American, although one was also part Asian-American. 
The last and only time that Colorado executed someone since the death penalty was reinstated in 1972 was when death penalty volunteer Gary Davis was executed in 1997 for crimes he confessed in open court to committing.  At least two former death row inmates in Colorado have left death row.  Once, Tim Masters, was released after it was determined he was wrongfully convicted.
Colorado's Federal Death Penalty Case

A federal Colorado jury did, however, convict Timothy McVeigh, one of the Oklahoma City bombing defendants (who was white and killed 168 victims of all races in that incident) for committing the bombing and sentenced him to death in 1997.  He was executed in 2001, in the first federal execution carried out in 38 years at the time.  Co-Defendant Terry Nichols was sentenced to life without the possibility of parole in 1998.  Minor accomplice Michael Fortier was sentenced to twelve years in prison pursuant to a plea bargain including a requirement of cooperation in 1998 and released in 2006 after ten and a half years due to credit for time served and credit for good behavior.

Given that some people convicted of first degree murder in Colorado and sentenced to life in prison have no doubt died while serving their sentences, the odds that a person convicted of first degree murder will be sentenced to death in Colorado is currently about 1%.  This is pretty typical of states outside the South that still have the death penalty.

All of the recent capital punishment defendants in recent years in Colorado, however, have had multiple victims, and the percentage of capital murder defendants who have multiple victims who were sentenced to death is significantly higher.

The Boston Marathon Massacre Case

The recent federal trial of the Boston Marathon bomber did result in the imposition of the death penalty despite the fact that the state of Massachusetts does not have a death penalty for crimes arising under state law.

Sister Wives Case Progresses On Appeal

In the Sister Wives case (Brown v. Buhman), a family featured in a reality TV show and non-fiction book about their family, is religiously and ceremonially polygamous, but does not claim to have more than one civil marriage, brought suit to invalidate Utah's bigamy statute.  Utah's bigamy statute, like Colorado's bigamy statute (but unlike the bigamy statutes of most other states), bans not only marriage to more than one person at a time, by cohabitation of a non-spouse with an opposite sex married person.

The Sister Wives family brought suit in federal court in Utah to have the cohabitation clause of the statute declared unconstitutional, while not seeking to invalidate the bigamy clause barring more than one civil legal marriage at a time and without seeking to require the State of Utah to recognize that they have a legally valid plural marriage.

The State of Utah did a miserable job litigating the case in the trial court, where it lost. The trial court decision on the merits that is appealed from (after a preliminary standing issue was resolved) is here and was previously discussed at this blog.

The State of Utah is trying to raise new issues and to insert a few more facts into the discussion that were not raised in the trial court in its opening brief on appeal in the 10th Circuit Court of Appeals. The Sister Wives family has now filed an answer brief addressing the state's claims and issues raised in some of the numerous amicus briefs filed in the case.  Once the State of Utah files its reply brief in several weeks, the 10th Circuit will probably set the case for oral argument, probably sometime late this year, after which a three judge panel will decide who wins and write an opinion, realistically, sometime next year.

All of the doctrines appellate procedure in civil cases, that prevent parties from introducing new facts, or raising new legal arguments, on appeal, along with developments in constitutional law over the last decade and a half, most notably the Lawrence case decided by the U.S. Supreme Court in 2003, which held that a law banning sodomy between consenting adults was unconstitutional, should make it easier for the 10th Circuit to affirm the lower court than it might otherwise have been.

But, given the politically charged nature of any ruling finding that a polygamous family is entitled to any sort of constitutional protections, the Sister Wives family, like any reasonable litigant in their shoes, can take nothing for granted.

Also, a ruling affirming the trial court decision on procedural grounds might be less useful as a precedent in other cases, although a ruling driven by procedural considerations might also make it easier for the U.S. Supreme Court to decline to review a 10th Circuit ruling in the case.

26 August 2015

Guns Cause Gun Deaths

Empirical evidence overwhelmingly shows that higher rates of gun ownership are associated with higher rates of gun deaths, both from homicide and suicide.