AURORA | With its decision not to hear Nathan Dunlap’s appeal last week, the United States Supreme Court pushed the convicted killer one step closer to execution.
But that doesn’t mean Dunlap’s appeals are over, or even close to it. Colorado’s last execution — that of Gary Lee Davis in 1997 — took place just a few months after the High Court rejected Davis’ appeal, but don’t expect Dunlap’s case to move forward so quickly.
Davis’ case always moved more quickly through the courts than Dunlap’s did. Davis confessed to his crimes, was convicted and sentenced to die just a year after he raped and murdered his neighbor near Byers. Dunlap’s case dragged from early on and it wasn’t until three years after he killed four at an Aurora Chuck E. Cheese that he was convicted and later sentenced to die.
While Dunlap has appealed his conviction at every step, Davis was ambivalent about his appeals, alternately wanting his lawyers to drop them and wanting them to fight his case.
That, combined with the current state of the death penalty in Colorado and around the country add up to a murky picture for Dunlap’s future — though it’s fair to say Dunlap won’t be killed within five months.
Dunlap’s lawyer said last week he planned to continue his effort to spare his client’s life, but he didn’t want to discuss specific plans.
Experts say that even after the Supreme Court’s rejection, Dunlap has plenty of options that can at the very least stretch his execution beyond this year.
“There are avenues open to someone even if they have been denied by the United States Supreme Court,” said Richard Dieter, executive director of the Death Penalty Information Center in Washington, D.C.
Chief among those options are appeals focusing on the method of execution, Dieter said.
Colorado law mandates that executions be carried out via lethal injection and according to the state Department of Corrections, executioners use a lethal cocktail of sodium thiopental, pancuronium bromide and potassium chloride.
That particular mix of drugs could raise issues, Dieter said. Sodium thiopental is not available anymore, so states have to find a different mix of drugs for their executions.
Also, the fact that Colorado doesn’t have much experience in delivering lethal injections will likely be an issue.
According to DOC statistics, Davis is the only person put to death in Colorado using lethal injection. The other 77 killed in Colorado since 1890 were executed via hanging or the gas chamber.
That’s an issue, Dieter said, because the execution process is fairly complex, with prison staff needing to mix the chemicals at the right dosages, strap the inmate down and insert the IV appropriately.
“Those are things that the prisons just don’t do on a regular basis, and typically doctors aren’t too likely to participate,” he said.
All of those issues will likely wind up before a judge before any execution, Dieter said, and they could delay the process.
“Courts will look at that, they don’t want anything too inhumane,” he said.
With the irrevocable nature of an execution, Dieter said courts are generally willing to hear new information and consider an appeal.
“Courts are reluctant to grant an additional appeal, but because the death penalty is so irrevocable and also shown to be fallible as of late, courts are willing to reopen these cases,” he said.
The fact that there is legislation aimed at abolishing the death penalty working its way through the state Capitol could also be a factor in Dunlap’s case.
“The political side can enter into death penalty cases as well,” he said.
Locally, legal experts say they don’t see the High Court ruling as some sort of final stop for Dunlap’s case.
“The attorneys are going to do everything they can to get it delayed, to get it stayed,” said Karen Steinhauser, a former prosecutor currently working in private practice. “We’ve seen so few death penalty cases in Colorado that get to execution, so I’m not sure it would be fair to say that people expect it to end this year.”