A federal appeals court this week rejected Nathan Dunlap’s latest appeal, bringing the convicted killer a step closer to being executed for the 1993 slayings of four people at Aurora Chuck E. Cheese.
Dunlap’s lawyers had argued last month that his previous defense team erred when they didn’t present more evidence of Dunlap’s mental problems during his trial.
But judges from the 10th Circuit Court of Appeals in Denver rejected that appeal, saying Dunlap’s lawyers made a calculated decision when they opted not to further pursue questions about Dunlap’s mental state.
In a ruling signed by Circuit Judge Paul J. Kelly, Jr., the judges said any attempt by Dunlap’s previous defense team to prove he suffered from mental illness would have been inherently risky, in part because some doctors believed Dunlap was faking mental illness.
The judges noted that a state doctor in 1994 found that Dunlap behaved normally 50 percent of the time, faked an illness 40 percent of the time, and appeared to suffer some sort of psychosis the rest of the time.
Because of that, the judges said any defense that said Dunlap was bipolar at the time of the killings would have been a tough sell.
The judges also noted that Dunlap told one doctor that he was faking.
“I’m gonna play crazy as long as I can…. The police have no case against me, they’re stupid,” Dunlap said, according to the ruling.
Phil Cherner, Dunlap’s lawyer, said Monday he would ask the 10th Circuit for a re-hearing next month. If that request is denied, Cherner said he plans to appeal Dunlap’s death sentence to the United States Supreme Court.
Cherner declined to say what would happen if Dunlap’s appeal to the Supreme Court were denied.
Dunlap, 38, was convicted in 1996 and later sentenced to die. He has been on Colorado’s death row since. Police say that Dunlap, a former employee of Chuck E. Cheese’, was upset about losing his job and went back to the restaurant to get even.
Killed in the shooting rampage were Margaret Kohlberg, 50; Ben Grant, 17; Colleen O’Conner, 17, and Sylvia Crowell, 19. Bobby Stephens survived the shooting and later identified Dunlap as the murderer.
Prosecutors in the murder case used Dunlap’s conviction for kidnapping, aggravated robbery and theft in a Nov. 3, 1993, robbery at a Burger King restaurant as one of the aggravating factors needed to impose the death penalty.
Since his conviction, courts have heard numerous appeals on Dunlap’s behalf, but in each case, a judge has upheld Dunlap’s conviction.
The Colorado Supreme Court heard oral arguments in Dunlap’s most recent appeal late last year.
Phillip Cherner, Dunlap’s lawyer, said the high court likely will announce their decision later this year.
Prosecutors have said that Dunlap admitted to faking mental illness.
Dunlap has also appealed his conviction from the Burger King robbery in an effort to get that aggravating factor thrown out and possibly save him from execution.
Those appeals, too, have been rejected.
Last year, Dunlap, along with the other two inmates on death row — all of whom are from Aurora — were transferred to a different prison after Dunlap settled a lawsuit requiring prison officials to let condemned prisoners exercise outside.
Dunlap had sued the Colorado Department of Corrections arguing the prison’s policy of restricting death row inmates to a small exercise cell a few times a week was unconstitutional.
With help from the American Civil Liberties Union, Dunlap settled his lawsuit with the state and was later transferred from the Colorado State Penitentiary in Canon City to the Sterling Correctional Facility.
The northeast Colorado facility has outdoor, chain-link cells that the inmates can exercise in, said Katherine Sanguenetti, a spokeswoman for the Colorado Department of Corrections.
The state’s other two condemned prisoners, Robert Ray and Sir Mario Owens, who were sentenced to death for the 2005 slaying of a murder witness and the witness’ fiancee, have also been transferred from CSP to Sterling, Sanguenetti said.
Once their death warrants are signed, the inmates will be transferred back to CSP about a month before their execution dates, Sanguenetti said.