Uncertain future for death penalty in Colorado after Holmes trial

After more than three months of trial, almost every juror in the Aurora theater shooting trial said James Holmes should be executed for his crimes.

But on that jury of 12 people last week, two jurors were on the fence, and one was adamant that she couldn’t vote for death, according to the lone juror to speak publicly about the deliberations.

That one juror means Holmes will spend the rest of his life behind bars, despite killing 12 and wounding 70 in one of the country’s worst mass shootings.

The decision, legal observers say, likely means Colorado is headed for a serious debate about whether the state should continue to use the death penalty.

Denise Maes, policy director for the American Civil Liberties Union of Colorado, said she hopes that in light of the verdict in the theater shooting trial, state lawmakers will move toward repeal in the coming legislative session.

“You do have to wonder if not now when,” she said this week.

Arapahoe County District Attorney George Brauchler — who prosecuted Holmes and pursued the death penalty — said that while he opposes repeal, he expects debate over capital punishment to increase in the coming months, and he welcomes that discussion.

“I think we need to always be open to reevaluating how the criminal justice system does its business and how it dispenses justice,” he said.

Today, just three men — Nathan Dunlap, Robert Ray and Sir Mario Owens — are on Colorado’s death row. And all of three of those men committed their crimes in Aurora and were prosecuted and eventually sentenced to die in Arapahoe County court, making Colorado’s third-largest city the epicenter of any debate over the death penalty.

The decision, legal observers say, likely means Colorado is headed for a serious debate about whether the state should continue to use the death penalty.

In 2013, when he granted Dunlap an indefinite reprieve from execution, Gov. John Hickenlooper said he hoped his decision — which amounts to less than a full commutation but means as long as Hickenlooper is governor, Dunlap will be spared — would spark a conversation about the death penalty.

That largely didn’t happen.

The state continued to use the death penalty and while nobody has been added to the state’s death row since then — Ray and Owens were the most recent cases, and they were sentenced in 2008 and 2009 — Holmes came within just one juror’s vote from being sentenced to die. And a Denver jury is now deciding whether another man, Dexter Lewis, should be executed for killing five at a Denver bar in 2012.

But with one of the worst criminals in the state’s history having dodged a death sentence despite killing 12 and wounding 70 more, that conversation Hickenlooper called for in 2013 could start in the coming months.

Brauchler said he expects a bill to repeal the death penalty will come up and have the backing of Democrats.

“I don’t have any doubt that the left wing of the political spectrum will run a death penalty repeal bill and will cite this case a reason for repeal,” Brauchler said.

Using the theater shooting jury’s decision to repeal doesn’t make sense, Brauchler said, just as a death sentence in this case wouldn’t have been an argument for further use of the death penalty.

“One hold out juror should not dictate policy one way or the other,” he said.

Arapahoe County District Attorney George Brauchler — who prosecuted Holmes and pursued the death penalty — said that while he opposes repeal, he expects debate over capital punishment to increase in the coming months, and he welcomes that discussion.

Maes said she expects repealing the death penalty to get more bipartisan support now than it has in the past, and pointed to the conservative Nebraska legislature, which just this year repealed capital punishment in that state.

She said right-leaning lawmakers could embrace repeal because the death penalty is expensive and amounts to a government overreach.

“I think it’s a failed policy and I think politicians of either side of the aisle are starting to see that,” she said.

But prosecutors say if the death penalty is repealed, they expect more cases will end up going to trial because even the most-heinous murders will only qualify for life in prison.

Adams County District Attorney Dave Young said the negotiations that happen now, where a defendant pleads guilty to avoid the harshest punishment and a trial, won’t happen without the death penalty being an option.

“Much, much more cases will be going to trial,” he said. “Because they have nothing to lose.”