AURORA | In the same courtroom where a jury last year balked at sentencing the Aurora theater shooter to death, prosecutors announced last week they will seek the death penalty against a man accused of killing his 6-year-old son.
The decision marks the first time Colorado prosecutors have sought the death penalty since the theater shooting trial and comes at a time when the death penalty is exceedingly rare in Colorado. Today, just two men — both convicted of killing an Aurora murder witness and his fiancée — sit on death row. A third Aurora man, who killed four at a Chuck E. Cheese restaurant in 1993, had his death sentence indefinitely delayed by Gov. John Hickenlooper.
Those three could be joined by Brandon Jamaal Johnson, 27, who is accused of killing his son, Riley, Feb. 10 at an apartment on East Harvard Avenue in unincorporated Arapahoe County.
During a court hearing last week, Arapahoe County District Attorney George Brauchler said he planned to seek the death penalty against Johnson.
Lawyers for Johnson don’t dispute that he killed his son, but say he acted impulsively and not with deliberation.
They also said they offered to plead guilty to the charges and accept a sentence of life in prison without parole if prosecutors agreed to take the death penalty off the table.
Prosecutors declined the offer.
Johnson’s lawyer, Stephen McCrohan, also said Riley’s mom, as well as the rape victim, didn’t want prosecutors to seek the death penalty.
Riley’s mother, Rachel Johnson, said after the hearing that she wasn’t sure whether she supported Brauchler’s decision.
“I don’t know what I want,” she said as she hustled away from the courtroom.
She later said, “I just want it all to be over.”
Brauchler said he couldn’t comment on specifics about why he opted to seek Johnson’s execution, but said in court the fact that the victim was a child younger than 12 was one of the aggravating factors that makes the case death-penalty eligible.
Brauchler said the death penalty is the law and he is tasked with applying that law.
“This is Colorado’s law, this isn’t my law,” he said.
A case like this one should be decided by members of the community where the crime occurred, he said.
“At the end of the day the public will decide … I think that’s appropriate here,” he said.
The American Civil Liberties Union of Colorado quickly condemned Brauchler’s decision, issuing a statement criticizing Brauchler even before Friday’s hearing had ended.
“Brauchler is once again seeking to put the 18th Judicial District of Colorado on the map for all the wrong reasons. Currently, Colorado’s death row is occupied exclusively by black men sentenced in the 18th Judicial District,” ACLU Colorado executive director Nathan Woodliff-Stanley said in a statement. “If Brauchler secures a death sentence in this case, he will add yet another black man from the 18th Judicial District to the row.”
The ACLU also called Brauchler’s decision a waste of money.
“Brauchler wasted millions of taxpayer dollars on the Aurora theater trial, a multi-million dollar failure that resulted in the same life sentence that was on the table all along. Similarly, the defendant in this case has offered to enter a guilty plea and accept a sentence of life without parole, rendering a costly trial unnecessary,” the statement said.
Brauchler declined to respond to the ACLU’s statement.
Brauchler’s decision marks the first time his office has sought capital punishment since seeking the death penalty for James Holmes, the man who killed 12 and wounded dozens more during a 2012 attack at an Aurora movie theater. In that case, a jury couldn’t reach a unanimous verdict on whether the gunman should be sentenced to death. He was sentenced instead to life without parole.
Brauchler said he considered the jury’s decision in the theater shooting trial when he opted to seek a death sentence for Johnson, but said it was just one of many factors he considered.
Supporters of the death penalty have said the cost of a capital trial is not what’s important — seeking justice is.
Adams County District Attorney Dave Young said that while prosecutors have to consider a host of factors when they make a death penalty decision, the cost of a trial shouldn’t be one of them.
“That should not enter into our decision one way or the other,” he said. “We have to enforce the law as it is written and right now the death penalty is the law in Colorado.”
In cases that are the “worst of the worst,” Young said prosecutors have to consider corporal punishment.
While critics of the death penalty have pointed to the fact that the theater shooter was given a life sentence instead of death as a reason not to seek death in cases involving fewer victims, prosecutors say comparing one crime to another shouldn’t play a big role in their decisions.
Denver District Attorney Mitch Morrissey said trying to compare one crime to another isn’t useful. While the theater shooter wasn’t sentenced to death for killing 12, Morrissey said other killers have been sentenced to death for a single slaying. He pointed to Frank Rodriguez who was sentenced to death in Denver for killing and raping a woman but died in prison before being executed.
“You have to evaluate each case on its own,” he said.
In Johnson’s case, he pleaded not guilty earlier this year but later withdrew that plea when prosecutors said they were considering the death penalty.
He was slated to enter a plea again Friday morning, but the hearing was intended to prove whether there was enough evidence for Johnson to stand trial on an added murder charge. Prosecutors initially charged Johnson only with killing a child but later added a count accusing him of first-degree murder after deliberation. Both charges stem from 6-year-old Riley Johnson’s killing.
Arapahoe County Sheriff’s Office Lt. Richard Anselmi said when he arrived at the apartment he found Riley sitting on the floor, leaning up against his bed wearing blue pajamas. The boy had a “very severe” gash on his neck, Anselmi said, and was dead when emergency crews got there.
Johnson was laying on the floor near his son under a blood-soaked Scooby Doo blanket with a gash on his neck, according to testimony.
Investigators who interviewed Johnson’s former girlfriend testified that she said she and Johnson had broken up a few weeks before the crime, but still lived together while Johnson tried to figure out a place to live with Riley. Riley was Johnson’s son from a previous relationship, and he and the woman had a 2-year-old son together. She slept in one room with her and Johnson’s 2-year-old son, while the defendant and Riley slept in another room, according to testimony.
Johnson’s ex-girlfriend told investigators that, on the night of the crime, Johnson came home in the early morning hours from his job as a bouncer and woke her up.
Johnson, who was armed with a knife, ordered the woman to the couch and raped her at knife point, threatening to kill “everyone in the house” if she screamed.
The woman said, after Johnson raped her, he walked into the room he shared with Riley. She grabbed Johnson’s Hello Kitty cell phone and tried to call 911 but she didn’t know the passcode to unlock the phone.
The woman said she then went into her bedroom where her 2-year-old son was sleeping and she heard Riley scream loudly.
Johnson then came into her room and told her, “All I wanted was a family,” before walking back into the room he shared with Riley.
The woman then fled to a neighbor’s apartment and called 911.
On a 911 tape played in court, the woman told dispatchers that Johnson was in the home with both children.
“He raped me and said he was going to kill his kids,” she said on the tape.
It didn’t appear from testimony that the 2-year-old was physically harmed during the incident.
Johnson appeared in court Friday wearing street clothes with a breathing tube attached to the front of his neck. He sat quietly at the defense table throughout the testimony.
The trial is slated for two weeks starting in June but that date will likely be pushed back. Death penalty cases typically move slowly through the courts and Johnson’s defense team said Friday they expect to waive his right to a speedy trial.