18 July 2015

Free Again From Jury Duty

On May 15, 2015, I joined the largest jury pool in Denver history in one of the first cases in which the Denver District Attorney has sought the death penalty in a very long time (People v. Dexter Lewis, Denver District Court case number 12CR4743). Friday afternoon, I was released from service after not being selected with the following message from the Court:
12CR4743 Reporting Instructions


The jury panel has been selected. All other potential jurors are now released from further jury service in this case. Unless you were selected to be on the jury, the court orders regarding your conduct are no longer in effect, and you may speak to other people about the case and perform research about the case if you wish.

Thank you, again, for your participation in this process.

There were a variety of reasons that I could have been selected or not selected for jury service in this case, which was anticipated to last three weeks for the trial, and three more weeks if there is a conviction for a capital offense and a sentencing phase of jury service is required.

I could have been removed for cause, because I had dined several times at the scene of the crime (Fero's Bar and Grill) and knew one of the victims in passing as a result, because I had visited the scene after the crime and followed newspaper coverage of the crime carefully, or because as a lawyer, I knew too much about the law that jurors should not know.

I also could have been removed via a pre-emptory challenge, because my juror questionnaire caused one side or the other in the case to think that I would be more inclined to rule against them than other jurors in the pool.

As it happens, I ended up not serving for the most benign of reasons.  A sufficient number of jurors to fill the panel survived challenges for cause based upon voire dire and a jury questionnaire responses over the two months of jury selection in the case to create a jury pool large enough to appoint all of the necessary jurors and alternate jurors after each side exhausted their pre-emptory challenges, before my juror number was called.

In the mean time, I have been subject to a variety of rules preventing me from discussing or researching the case, and preventing me from communicating with the media for any reasons, and from communicating with various other persons about the case until today, when I was released from jury service.

In the end, I saw no news coverage about the case for which I was in the pool by chance that I would have had to avoid.  But, I did have to withdraw from my participation in a panel discussion with the media about criminal justices unrelated to this case that had been scheduled, and had to deal with having a major unknown that could potentially have been very disruptive to my schedule looming over me for a couple of months.

I also refrained from making posts at this blog about issues that could touch on those strongly implicated by the issues in the case where I might be a juror.

I was ambivalent about serving.  If I had been selected, I would not have tried to escape service due to financial hardship, even though it would have cost me tens of thousands of dollars to be away from my job for nine days every two weeks for six weeks when I am self-employed, even after considering the pitifully small stipend that is paid to jurors (which is not even minimum wage).  I also refrained from making false statements on my juror questionnaire about my personal beliefs that would have assured that I would be disqualified from jury service in ways that could never be proven to be wrong, even though, as an attorney who had handled several jury trials, I knew how to do so.

I do feel that participating on a jury is a powerful personal experience and is important for the functioning of a legal system that it is an integral part of my life to participate in.  I was also inspired by the fact that Chief Justice of the United States Roberts showed up when called for jury duty shortly before I was and made no effort to avoid serving (although he was unsurprisingly not selected to serve on the panel) even at a very busy part of the U.S. Supreme Court's term.

My Thoughts On The Death Penalty

Personally, I feel that the decision regarding whether a person convicted of first degree murder receives life in prison, or is sentenced to death, is one of the least important decisions made in our criminal justice system which receives far too much judicial, academic and political attention.

Either way, the individual is permanently removed from society with a high degree of probability, and even if the individual is sentenced to death, that individual will spend many years in prison before an execution and there is a reasonable chance that that individual will ultimately be spared an execution either due to the legal and pardon process, or because the person dies of natural causes first.

I would have tried to make the decision fairly, if it came to that, and I am not morally opposed to the death penalty, even though I think that as a matter of public policy, the expense of administering the death penalty out weighs its benefits, and I think that the administration of the death penalty in some other statutes that have it, particularly in the South, like Texas, Florida, Arkansas and Louisiana does far less to respect the due process of law than the administration of the death penalty in states in the North and the West like Colorado.

As a juror, the cost would have been a sunk cost as a result of policy decisions already set in stone with respect to this case, so cost would be an irrelevant factor, and it would boil down to aggravating factors and mitigating factors pertinent to culpability.

But, the first phase of the trial, to determine the guilt or the innocence of the person of the crime charged is far more important from a moral perspective and a policy perspective.

This is why I also think that one of the most problematic aspects of the death penalty in the United States today is a feature of jury selection that is applied in death penalty cases, but not in any other kind of criminal case: death qualification.

Prosecutors have a right to exclude prospective jurors from a jury pool "for cause" on the grounds that the juror is morally opposed to the death penalty.  Most opponents of the death penalty are also among the most liberal members of a typical jury pool and are most likely to take seriously defense arguments on the question of guilt or innocence.  So, simply by electing to seek the death penalty, the prosecutor secures a jury which is more likely to convict, on average, than a jury in any other criminal felony case that he prosecutes.

A law that materially increases the likelihood that a defendant will convicted based upon a decision to charge a more serious offense for the same conduct is deeply problematic.

One of the reasons that I felt morally obligated to try to not dodge jury duty in this case, when I had the ability to do so in ways that would have had no negative consequences for me other than guilt for being insincere and not taking a civic duty seriously, was that I felt obligated to mitigate the harm to the defendant that would result if liberals in the jury pool generally, either sincerely or as a result of their own self-interest, claimed opposition to the death penalty in order to escape having to serve for six week which would be an economic hardship.

In principle, even if the case for a first degree murder charge is weak and unlikely to result in a conviction on that count, a prosecutor who might not otherwise press that charge is tempted to do so in order to increase the likelihood of conviction on a lesser charge or to force a plea bargain to a lesser charge.  Some prosecutors are known to do exactly this, including some who serve or have recently served in Colorado.

To be clear, I am not saying that in this particular case that the Denver DA was engaged in such conduct.  The Denver DA has prosecuted a great many first degree murder cases during his tenure without seeking the death penalty.  And, there is certainly, in this case, probable cause to support the conclusion that the facts meet the requirements for a capital murder conviction on one of the two alternative theories (felony-murder and premeditated murder) under which the Denver DA is seeking it, as I explain below.

The Case Itself

The following account (except for the links) of the case is based upon newspaper accounts that I read of the case before I was called for jury duty.  It does not reflect anything that I learned while in the jury pool from the court or otherwise, as I followed the Court's instruction not to conduct any research.  But, since the case was so serious and so close to home, I had followed it very closely, and because I am a lawyer, I was able to analyze the facts that I was aware of in light of the relevant law.

Corrections after reviewing the fact are below in italics.

On October 17, 2012, a restaurant on Colorado Boulevard near Alameda Avenue, close to my old office at 3773 South Cherry Street, owned by a Korean-American woman who was the landlord of one of the alleged co-conspirators in the case, was robbed.  Several people were killed, including the owner, and the restaurant was destroyed in an arson that failed to destroy much of the key evidence.  Autopsies determined that the murder victims were stabbed to death before the building was set on fire.  The case was cracked quickly with all suspects arrested within two or three days, based upon information provided by a government informant who had been participating with them in an investigation of unrelated felonies (I don't recall if it was for drug offenses, firearms offenses or both) by the group of men accused of committing the crime.  Two of the defendants were brothers.  The informant allegedly did not participate in the crime itself, having excused himself from their company when it looked like the situation would take a turn for the worse, and then was present after the fact to see the robbery proceeds divided.  The informant told his handlers what he knew about the crime and where the defendants would be and they were promptly arrested and charged.

Two of the defendants pleaded guilty to serious crimes carrying long prison sentences, but with no prospect of a death penalty, in exchange for their pleas and cooperating in prosecuting their co-defendant.  Lewis did not plead guilty and was charged with first degree murder in a case where the death penalty was sought.  It is not clear what plea deal, if any, Lewis was offered by the DA.  If the DA was convinced that he was more culpable than his co-defendants and the informant, the DA might have decided that the death penalty was the only appropriate option for him in a case resulting in multiple murders during the course of a robbery and covered up by arson, and might not have offered him any deal.  We may never know.

The strongest defense that the defendant has in this case is probably that the prosecution witnesses (including a witness who was a government informant on unrelated matters when this crime was committed and co-defendants who escaped the death penalty in exchange for their cooperation in this trial) will twist their testimony to mitigate their own exposure to criminal penalties in a way that falsely exaggerates (or outright fabricates) the involvement of Mr. Lewis in the crime.  The defense will likely make that argument as one or many in the guilt or innocence phase of the trial, and the jury will have to decide the prosecution has rebutted that defense beyond a reasonable doubt.  The fact that the sentences of the co-conspirators who pleaded guilty were so long, however, will make it harder to impeach their testimony than it would be if the discounts were as extreme as the informant's freedom from any criminal sanctions.

But, Colorado's felony-murder statute, like most such statutes nationally, greatly lowers the bar of facts that the jury must find beyond a reasonable doubt, to convict.

The prosecution's theory of the case is that Lewis personally killed some of the multiple victims in the case during a robbery committed with some accomplices who have already pleaded guilty, and then burned down the building where this took place to cover up the crime.  To establish a felony-murder conviction, however, the prosecution doesn't have to show that Lewis personally killed someone, or had any intent that anyone die.  The prosecution also need not establish that he was a leader of the group carrying out the robbery or the arson, or even that his participation in either of these crimes was particularly important.  The prosecution need only establish that he was a knowing participant in any part of the group's robbery of the restaurant or the arson to cover up it and the murders, and that someone died in the robbery or arson.

Overwhelming evidence will establish that multiple people died as a result of stabbing wounds in the course of those crimes.  Overwhelming evidence will establish that the building was destroyed through arson.  Very strong evidence, which Lewis's attorneys can do almost nothing to rebut without implicating their client as a participant in the murders or arson, will show that a robbery took place.

Thus, the question of guilt or innocence in this case will boil down to a determination regarding whether Lewis really did, or did not participate in either the robbery or the arson.  If he did, even if he never expected that anyone would be hurt, even if he urged his co-conspirators not to kill the victims and even if he did not personally participate in killing them, he is guilty of first degree murder and eligible for the death penalty (which may be imposed if the jury agrees that it is warranted in the sentencing phase).

Only if he did not participate in the robbery, the arson or the murder, can he be acquitted of the felony-murder charge if the jury does not engage in jury nullification, for example, to prevent the death penalty from being imposed, and the death qualification of the jury makes that particularly unlikely.

Of course, the jury has the power to convict Lewis, age 25, of robbery and/or arson, and acquit him of murder entirely, even though it is logically impossible given the state of the evidence for this to be a legally correct verdict when a felony-murder charge is pending and there is no dispute that the victims died in connection with the crime.  A jury acquittal may not be appealed by the prosecution, although the sentencing judge might be inclined to impose a maximum possible sentence for the robbery and arson counts, even though those crimes were otherwise unremarkable, if the jury did that, creating something close to a de facto life sentence for Lewis.

A variety of evidence may be offered to prove that Lewis participated in the robbery, the arson, or the murders.

Three people who know Lewis well, two of whom are accused of being co-conspirators with him and one of whom was a police informant in an unrelated case at the time, will all testify to Lewis being involved in the crimes both at the scene, and from testimony related to a division of the robbery proceeds after the crime was completed.  All three of them could lie on the stand.  But, there is no real risk that any of these three witnesses would have mistaken Lewis, whom they knew well, for someone else.  Misidentification is the most common cause of wrongful convictions.

I am not aware of any other witnesses to the crime itself who escaped alive.  But, I could be mistaken.  There may also be minor prosecution witnesses who can help to establish the time of the crime, the presence of a vehicle used by Lewis or one of his co-conspirators, to corroborate other evidence in order to bolster the co-conspirator and informant's accounts, and the absence of an alibi for Lewis during the time that the crime was committed.

There may be security cameras from the neighborhood showing Lewis, or at least a vehicle regularly used by him and his co-conspirators, arriving at and/or leaving the scene at the right time.  There may be fingerprints or DNA evidence or other physical evidence from the scene of the crime that link Lewis to the scene of the crime, or even to a murder weapon or one or more victims of the crime from the scene of the crime.  There may be evidence found someplace other than the scene of the crime linking Lewis or someplace that he went afterwards to the scene of the crime.

The jury will probably not be told, and the prosecution will probably be under strict direction set in order on pre-trial motions in the case, not to reveal that Lewis has a record of prior serious felonies and was part of a gang that was actively being investigated for more serious felonies at the time, even if that takes considerable contortions in how the evidence is presented.  But, his prior criminal record will be presented to the jury to impeach his credibility, if Lewis testifies in his own defense, which he is unlikely to do unless he hears something in the testimony of his alleged co-conspirators and the government informant that he thinks that he could effectively rebut with his own testimony that outweighs the negative effects of these disclosures (which will come out in the penalty phase anyway if he is convicted of first degree murder).

There is no indication in this case, the Lewis will invoke the insanity defense as the Aurora Theater shooting defendant did, unsuccessfully with the Arapahoe County jury convicting him today.

In that trial, where the defendant had a long history of mental illness and was under psychiatric care until not long before the shooting, it was a natural approach to take in a case where he was caught more or less on the scene as victims in the theater were still dying in an outfit that made him unmistakably the perpetrator seen by large numbers of survivors of the shooting and corroborated by a wealth of incriminating evidence from his apartment and from documents that he mailed to his psychiatrist.  Ultimately, the jury found that the Aurora Theater shooting defendant, while he may have been mentally ill, did not have the right kind of mental illness to qualify for the insanity defense to murder in Colorado, although his mental illness will be a potential mitigating factor as the jury considers whether to sentence him to death.

Overall, the likelihood of a conviction in this case is great, unless Lewis can present a convincing alternative story at trial of which the media is unaware, that does not make him equally guilty of felony-murder.  The fact that he had motives to harm to of the victims which none of the other co-conspirators did is a corroborating fact that biased testimony from co-defendants and the informant can't cast in doubt.  Searches likely revealed bleach on his clothing corroborating the informant's testimony about efforts to destroy evidence of the crime and a cell phone with a police scanner app as the informant claimed.

Sentencing Considerations

Lewis is not a minor, and there has been no indication in this case so far that he is mentally retarded to a sufficient extent to be constitutionally ineligible for the death penalty.

As is frequently the case when the death penalty is sought, the Lewis capital murder case in Denver involves a group of black men accused of killing victims some of whom (at least) were white or Asian-American.  There is some room to argue racial basis in choosing him of all people to face the death penalty.

In the sentencing phase of the trial, the fact that Lewis probably has a serious prior criminal record and was currently being investigated for other serious crimes probably will come out and constitute aggravating factors.  Lewis will likely argue in the sentencing phase that his experience growing up in a poor black household with parents who may have either neglected him or treated him poorly, and a school system that failed to meet his needs growing up, should be considered as mitigating factors in the sentencing decision, and he will also likely try to humanize himself which he may have little opportunity to do if he does not take the stand in his defense in the guilt or innocence phase of the trial.

One of the stronger mitigating factors for Lewis may be the fact that none of his co-defendants face the death penalty, and that the informant will not receive any criminal sanction despite significant involvement that could have been used to secure a felony-murder conviction against him as well.

It is hard to say what a jury in a penalty phase would decide on the death penalty.

After the fact, I looked at the stories and learned that my memory, while not perfect, was close.  The case was cracked in the first twenty-four hours.  Five people were killed (four white and one Asian-American).  The landlord and the restaurant owner were the two targets but were not the same person, and these targets were chosen by Lewis based upon his grievances against them.  The informant (for the federal alcohol, tobacco, firearms and explosive agency), who happens to be Hispanic, allegedly witnessed two suspects (Lewis and the older brother) personally stab victims to death while he was present, the fled the scene, rejoined the group, and shared in the robbery proceeds after having helped case the joint but did not personally harm anyone himself.  Guns were present but not used. They arrived with masks in the car.  The informant faces no criminal charges, while the two brothers in the case have pleaded guilty.  While Colorado law allows felony murder charges based on robbery or arson, the felony murder charges relate only to robbery, probably because the victims were dead before the arson took place.  A gun was allegedly present but not used, in the robbery.

Regarding criminal records: "Lewis's dad was a gang member who died violently in 1994. His criminal record includes robbery, menacing and misdemeanor sexual assault. He's said to be engaged to be married, with a fiancee who's pregnant and only weeks from delivering (in October of 2012). As for the Hills, who are brothers, Lynell had a couple of misdemeanor assault charges in Arapahoe County in 2010 and 2011. More recently, Lynell is said to have been involved with a talent agency, while Joseph managed a hotel."  Lewis was just twenty-two years old at the time and apparently racked up his criminal record of robbery, menacing and misdemeanor sexual assault, in just four years while he was an adult. There is a good chance that Lewis was on parole at the time. Lewis will have been incarcerated for 33 months while awaiting trial when his trial commenced, and for not quite three years by the time that a guilt or innocence verdict and a death penalty verdict (if necessary) have been issued.  The affidavit suggests that all of the men were part of the same gang.  There may be further juvenile offenses.

If He Is Convicted

If Lewis is convicted, he will join about 1800 men and women (mostly men) in prison in Colorado prisons for offenses including homicide, of which, as of 2006, there were 668 which were convicted of first degree murder (all of whom were eligible for the death penalty if sought by the prosecution), with 374 of them not having a possibility of parole, and the rest of the homicide defendants were convicted of lesser homicide charges).  Thus, only about one in 222 persons eligible for the death penalty in Colorado based upon the crime of conviction is actually sentenced to death in a sentence that is legally upheld in the end.

If he is sentenced to death, he will join three other men on death row, although 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.

An Odd Coincidence - The Many Recent Arson Incidents In Or Near Glendale

The arson in the Lewis case is one of three several serious cases in that vicinity in recent years.  A leather store called the Sheepskin factory was burned down by an environmental terrorist less than a block away two years earlier.

A couple of years later, an apartment complex under construction a couple of long blocks away was burned down in Glendale at S. Cherry Street and Cherry Street South.  An in between the fire at the construction site and the one in the Lewis case, there was another arson apartment fire in Glendale brought in order to strike back at a resident acquaintance of the perpetrator who was just about to get married.

The coincidence also calls attention to a jurisdictional issue in this case.  This crime took place within the boundaries of the City and County of Denver where I live, which is why I was on a jury pool for the case.  But, the other side of Colorado Boulevard would have been in Glendale, Colorado, an incorporated enclave of Arapahoe County, Colorado that is entirely surround by the City and County of Denver and contracts for fire protection services from the City and County of Denver's fire department (so does Englewood, Colorado).

Generally, if you are a criminal defendant, the City and County of Denver, which has more liberal jury pools on average than Arapahoe County, and a more liberal leaning prosecutor than Arapahoe County, is the better place to face serious criminal charges.  But, in this particular case, it is unclear that the choice of venue will make much of a difference for Lewis.

It isn't impossible to believe that the hundred yard happenstance between being tried in Denver and being tried in Arapahoe County may have been one factor of many that helped persuade the Denver DA to feel right about pressing for the death penalty in this case when he had declined to do so in so many other cases.

1 comment:

andrew said...

The jury found Dexter Lewis guilty on all counts on Monday after less than three days of deliberation and is now proceeding to the death penalty phase of the trial starting today, which is expected to last three weeks.

There was one felony murder count for each victim, one first degree murder with premeditation count for each victim, and one robbery county for each victim, as well as one arson count (which was presumably not a felony murder predicate crime, because the arson took place after the murders were complete). This seems to imply that the jury credited testimony from two co-conspirators, one who pleaded guilty to second degree murder and the other of whom was not arrested or charged because he was a government informant who reported the crime and claimed to have minor participation in it, that Lewis personally stabbed each of the victims. Other aspects of their testimony differed and Lewis did not testify (possibly because this would cause the jury to be informed of his substantial prior violent criminal record, and possibly because his testimony, if truthful, could corroborate some parts of the state's case even if it contradicted others, helping the state meet its burden of proof against him).