1 DISTRICT COURT, DOUGLAS COUNTY, COLORADO 4000 Justice Way Castle Rock, CO 80109 THE STATE OF COLORADO vs. EDWARD MONTOUR, JR. Defendant. ▲ COURT USE ONLY ▲ Defense Attorneys: DAVID A. LANE, #16422 KILMER, LANE & NEWMAN, LLP 1543 Champa Street, Ste 400 Denver, Colorado 80202 Phone 303-571-1000; Fax 303-571-1001 [email protected]KATHRYN J. STIMSON #36783 1543 Champa Street, Suite 400 Denver, CO 80202 Telephone: (720) 339-7132 Fax: (303) 571-1001 [email protected]HOLLIS A. WHITSON, #32911 SAMLER AND WHITSON, PC 1127 Auraria Parkway, Ste 201B, Denver, CO 80204 Phone 303-670-0575 [email protected]Case Number: 02CR782 (Douglas County) Lincoln County Case Number 02 CR 95 Division: 3 – Courtroom 3 Richard B. Caschette District Court Judge – Div. 3 Douglas County Justice Center 4000 Justice Way – Ste 2009 Castle Rock CO 80109 Phone: 303-663-7210 Fax: 303-814-7613 D-181 (2012-07-11) SUBMISSION OF MURDER STUDY REPORT Edward Montour, Jr., by and through counsel, submits the Preliminary Murder Study Report in support of D-181. FURTHER, Mr. Montour states: 1. This preliminary report is being submitted because of the deadline set by this Court. Research is still underway, and some final analysis may still take place, as indicated in the report. If additional data or analysis is done before the hearing on this matter, Mr. Montour will of course supplement or amend this submission.
2. Mr. Montour explicitly does not waive any of the arguments or objections that have been expressed in court or in prior pleadings regarding the Murder Study data.
3. At present, the study experts are scattered allover the country and soon, will be scattered around the globe. Thus, the expert team has submitted this pdf report to me, which contains e-signatures until they can gather original and copied signatures. As soon as those have been provided to counsel, counsel will file said document with the court.
WHEREFORE, counsel submit the Murder Study Report.
DAV A~ LANE KATHRYN J. STIMSON HOLLIS WHITSON
CERTIFICATE OF MAILING:
I certify that a true, accurate and complete copy of the foregoing was emailed to the following on July 11, 2012:
Joint Declaration and Report of Justin Marceau, Wanda Foglia and Sam Kamin
1. The undersigned individuals have designed and carried out a study of Colorado murders for the
time period January 1, 1999 through December 31, 2010. The purpose of the study is to
evaluate the effectiveness of Colorado’s aggravating factors in narrowing the class of death
eligible defendants. The expert team was comprised of Wanda Foglia, Sam Kamin, and Justin
Marceau. Our credentials, the study methodology, and our findings are summarized below.1
Study Personnel
2. Professor Justin Marceau is the chair of the expert review team. He is a tenured law professor
at the University of Denver, Sturm College of Law. He has been on the law faculty since 2008.
Prior to joining the tenure track faculty at the Sturm College of Law, Mr. Marceau specialized in
capital habeas corpus appeals as an Assistant Federal Public Defender (District of Arizona). He
regularly teaches and researches criminal law, criminal procedure, habeas corpus, the death
penalty, and federal jurisdiction more generally. His scholarly works have been cited by other
leading scholars and treatises, he is regularly invited to present his work to scholarly and
practitioner audiences – including a conference organized by state court judges this year – and
his work has been cited by several federal courts. Professor Marceau is also the author of a
textbook on Federal Habeas corpus and he has agreed to publish an Advanced Criminal
Procedure textbook.
3. Professor Wanda Foglia is a tenured, full professor in the Law and Justice Studies Department at
Rowan University. She received her J.D. and Ph.D. in Criminology from the University of
Pennsylvania. Before joining the faculty at Rowan University in 1994, Dr. Foglia practiced law,
including a position as an Assistant District Attorney in the Philadelphia District Attorney’s
Office. She previously taught criminal procedure and criminology courses at the Montgomery
County Police Academy and currently teaches undergraduate and graduate courses in
criminology and law at Rowan University. She has published on deterrence and cognition and
crime and, since becoming the Principal Investigator for the Pennsylvania portion of the Capital
Jury Project in 1996, her publications have been primarily focused on the death penalty. As a
result of her death penalty research, Dr. Foglia has been asked to testify before the New Jersey
Death Penalty Study Commission, to prepare a report for a Pennsylvania Supreme Court Sub-
1 This report is produced in response to a deadline set by the District Court in the case of People v. Montour. As
elaborated below, the study is substantially, but not entirely, complete. We will complete the study once field research is complete. We are comfortable submitting this report now because, from a statistical standpoint, the review of the final few dozen cases is unlikely to impact our conclusions. We will make any necessary adjustments to our statistics once the study is complete. However, based on the volume of cases reviewed to date, we are confident that any such adjustments will not materially affect our statistical results and will not alter our conclusions about the constitutionality of Colorado’s Death Penalty Statute.
2
Committee on Discrimination in Sentencing, to present at academic and professional
conferences, to review jury research for the National Institute of Justice and several articles and
books on the death penalty, to comment on New Jersey’s repeal of the death penalty on public
television, and to appear as an expert witness in 24 capital cases in 14 states.
4. Professor Sam Kamin is Director of the Constitutional Rights and Remedies Program at the
University of Denver, Sturm College of Law. Holding a J.D. and Ph.D. from the University of
California and a B.A. in Physics from Amherst College, Professor Kamin has taught at the Sturm
College of Law since 1999. He writes and teaches in the areas of Criminal Law and Procedure,
Death Penalty Jurisprudence, and Federal Courts. His articles have appeared in the Virginia Law
Review, the Journal of Constitutional Law, the Indiana Law Journal, the Boston College Law
Review, and Law and Contemporary Problems, among many others. He is the principal author
of Investigatory Criminal Procedure: A Contemporary Approach, a casebook published by
Thomson/West and has other casebooks currently in progress.
Background
5. We are providing this declaration in order to summarize an empirical study that we conducted
of murder cases in Colorado. The purpose of this study was: (1) to determine the degree to
which the aggravating factors listed in Colorado Revised Statute § 18-1.3-1201(5) limit the
number of murder defendants who can be sentenced to death (the aggravating factor rate); (2)
to determine the percentage of first degree murder convictions that were prosecuted as death
penalty cases (the death prosecution rate); and (3) to determine the rate at which sentences of
death were imposed in the cases for which the prosecution sought death (the death sentence
rate). Our study, then, is designed to determine the Colorado aggravating factor rate, the
Colorado death prosecution rate, and the Colorado death sentence rate.
6. Our study and the conclusions we draw regarding Colorado’s capital sentencing scheme are
grounded in the Supreme Court’s Eighth Amendment capital sentencing jurisprudence, which
recognizes that a State’s capital sentencing scheme must “genuinely narrow” the class of death
eligible defendants. In Zant v. Stephens, 462 U.S. 862 (1983), for example, the Court elaborated
on the requirement that, post-Furman v. Georgia, a capital sentencing scheme must produce
meaningful standards for avoiding arbitrary sentencing. Specifically, in order to avoid an Eighth
Amendment violation, the State’s “aggravating circumstance[s] must genuinely narrow the class
of persons eligible for the death penalty and must reasonably justify the imposition of a more
severe sentence on the defendant compared to others found guilty of murder.” Id. at 877-78.
The Supreme Court has emphasized that if the death penalty scheme is appropriately narrowed,
then “it becomes reasonable to expect that juries-even given discretion not to impose the death
penalty-will impose the death penalty in a substantial portion of the cases so defined.” Penry v.
Lynaugh, 492 U.S. 302, 327 (1989) (noting that if death is not imposed in a “substantial portion”
3
of the cases where there is death eligibility, then the problems of wanton and freakish
application of the death penalty are not cured).
7. Our study is based on the understanding that Colorado’s aggravating factors are designed to
perform the requisite narrowing required by the Eighth Amendment. No other feature of
Colorado’s capital sentencing scheme materially and non-arbitrarily imposes legislative limits on
the death eligibility of a defendant guilty of first degree murder. People v. Dunlap, 975 P.2d 723,
735 (Colo. 1999) (recognizing that in both weighing and non-weighing jurisdictions the
“constitutionally mandated first step” for death eligibility is the conviction of the defendant of
murder and the finding of “one aggravating circumstance (or its equivalent) at either the guilt or
penalty phase”); id. (“the finding of at least one aggravating circumstance, or ‘aggravating
factor’ under our statutory terminology, is an essential constitutional component of [the] death
penalty”); see also People v. Harlan, 8 P.3d 448, 483 (Colo. 2000), overruled on other grounds (“a
death sentence imposed on the basis of a statutory aggravating factor that fails to narrow the
class of persons eligible for the death penalty . . . violates the constitutional ban on cruel and
unusual punishment”).2
8. Our conclusions regarding the constitutionality of the Colorado capital sentencing system are
also informed by the fact that in Furman v. Georgia, 408 U.S. 238 (1972), the Supreme Court
held to be unconstitutionally arbitrary death penalty schemes where only approximately 15-20%
of those eligible for death were actually sentenced to death. 408 U.S. at 309 n. 10 (Stewart, J.,
concurring); id. at 386 (Burger, C.J., dissenting). See also id., at 436 n. 19 (Powell, J., dissenting).
That is to say, a death sentence rate of 15-20% has previously been recognized as irreconcilable
with the Eighth Amendment.3
2 Colorado has a broad definition of first degree murder such that the distinction between first and second degree
murder does not sufficiently narrow the class of death eligible defendants. Unlike states that reserve first degree murder for a small class of offenders, Colorado Revised Statute § 18-3-102 includes, not just murder after deliberation, but felony murder, and murder by extreme indifference. Indeed, under Colorado law a felony murder is necessarily a first degree murder conviction because there is no second degree felony murder. First degree murder in Colorado, then, includes not just premeditated killings, but also killings that are the product of gross recklessness or even negligence. Consequently, even more than other states, the role of Colorado’s aggravating factors is critical. 3See Steven F. Shatz, The Eighth Amendment, the Death Penalty, and Ordinary Robbery-Burglary Murderers: A
California Case Study, 59 FLA. L. REV. 719, 745-746 (2007) (“When the Court decided in Furman that the death penalty, as then administered by the states, created too great a risk of arbitrariness, it was the Justices' understanding that only 15-20% of death-eligible murderers were sentenced to death.”); id (noting that it was the fact “that fewer than one in five statutorily death-eligible defendants were being sentenced to death . . . that caused the Justices in Furman to find that the death penalty was ‘exacted with great infrequency’ . . . and consequently, was inescapably arbitrary.”); Steven F. Shatz & Nina Rivkind, The California Death Penalty Scheme: Requiem for Furman?, 72 N.Y.U. L. REV. 1283, 1288 (1997) (“In Furman, the Justices' conclusion that the death penalty was imposed only infrequently derived from their understanding that only 15-20% of convicted murderers who were death-eligible were being sentenced to death.”).
4
Study Methodology and Findings
9. The study examined every murder case in Colorado, as identified by the Colorado State Judicial
Branch, from January 1, 1999 through December 31, 2010. It did not involve a sampling of
cases, but rather investigated the entire universe of murder cases in the State’s judicial records.
10. This universe of murder cases for the relevant study period, by county and case number, was
obtained by defense counsel based on a request to the Colorado State Judiciary. Specifically, on
June 24, 2011, Jessica Zender, a policy analyst for the Colorado Judicial Branch, Division of
Planning and Analysis emailed to counsel the list of murder cases filed between January 1, 1999,
and December 31, 2010.
11. The total number of murder cases identified by Ms. Zender for the relevant period of time was
1,350.4
12. In order to acquire data regarding each of the 1,350 cases identified by the State Judiciary,
defense counsel hired a number of paralegals, law students, and lawyers to serve as a Data
Collection Team (“DCT”).
13. The DCT assisted our expert review and study in a number of ways. Most importantly, the DCT
conducted case research in every county in order to provide us with information about each of
the 1,350 cases identified by the state judicial branch. The DCT has also eliminated cases from
the study based on the defendant’s ineligibility for the death penalty using straightforward
criteria provided to them by us. Specifically, the DCT was asked to eliminate cases from the
study based on four criteria: (a) There is no deceased victim, cf. Kennedy v. Louisiana, 554 U.S.
407 (2008); (b) the defendant was a juvenile at the time of the offense, cf. Roper v. Simmons,
543 U.S. 551 (2005); (c) a jury has acquitted the defendant of first-degree murder – this is
known as the controlling fact-finder rule (“CFF”);5 or (d) the defendant has been convicted of a
4 To be more precise, the State judicial list includes 1,344 cases. However, this set of cases excluded six cases that
have been provided to us by counsel for Montour. Five of the cases that the State judicial list excluded were cases from the Eighteenth Judicial District for which the prosecution filed a death notice. It appears that the record keeping method in the Eighteenth Judicial District is such that the State Judiciary’s search of all murder cases did not yield the death noticed cases from that district. The sixth excluded case was from Rio Grande County, and was excluded by the State Judiciary’s disclosure apparently because it resulted in a conviction for child abuse resulting in death, not murder. Mr. Montour’s counsel have filed a document with the Court certifying that all known cases in which the death penalty was sought during the relevant period of time have been included in the study. It is also worth pointing out that the 1,350 total cases includes 22 cases in which the prosecution pursued a death penalty prosecution, at least prior to sentencing. 5 Under the CFF rule, a jury finding of guilt as to first degree murder is treated as controlling, and likewise a jury
acquittal of first-degree murder is treated as controlling. Similarly, a jury verdict finding the defendant not guilty of a lesser crime, such as second degree murder, is also treated as a controlling fact finding.
5
crime less serious than a second degree felony. This last category includes convictions for
second degree murder-heat of passion, conspiracy to commit second degree murder,
manslaughter, negligent homicide, and other crimes of violence that are a third-degree felony or
less.6 We excluded three additional cases on unique legal grounds: (1) an international
extradition agreement to not seek the death penalty, (2) a cold case that occurred prior to
Gregg v. Georgia, and (3) a double entry in the State Judicial list.
14. The total number of DCT-excluded cases based on these criteria is 662. Of the 662 cases
excluded by the DCT, 5 were cases in which the prosecution had initially pursued a death
prosecution; in each of the 5 cases the defendant was acquitted, either directly or impliedly, of
first degree murder, thus, excluding the case from the study under the CFF rule.
15. After the DCT had excluded 662 cases from the initial 1,350 total cases obtained from the State
Judicial Branch, there remained 688 cases for expert review. Of the 688 cases, 17 were cases in
which the prosecution had, at least pretrial, pursued a death sentence.
16. For each of these 688 remaining cases, the DCT was tasked with compiling as much information
as possible about each of the murders. The DCT gathered case dockets, charging information,
appellate court decisions, police reports and affidavits contained in the district court file, and
media accounts. Based on the DCT’s research, a “case file” was constructed that included all of
the information that the DCT could gather regarding each of the 688 murders during the
relevant time period.
17. The expert team reviewed each of the case files created by the DCT for the cases included in the
study. The expert review of the case files focused on three basic questions: (1) whether there
was sufficient information in the file to make the relevant determinations; (2) whether the case
was either factually or procedurally a first-degree murder; and (3) if so, whether one or more of
the statutorily enumerated aggravating factors was present.
18. If the expert team concluded that there was insufficient information in the case file, the case
was sent back to the DCT for additional research. If, after additional research, there was still
insufficient information, the case was excluded from the study. Presently, there are 50 cases for
which there is insufficient information. Of these 50, the experts conclusively determined that
there was insufficient information in 18 cases. Another 32 cases are still being researched by
members of the DCT.
6 Notably, conspiracy to commit first degree murder is a second degree felony. Accordingly, if the defendant was
convicted of conspiracy to commit first-degree murder, and there was a deceased victim, the case remained in the study. Only cases in which it was an third degree felony or lower, or where there was no deceased victim were excluded. A defendant convicted of conspiracy to commit first degree murder could be guilty of first-degree murder as a complicitor under Colorado law.
6
19. Because there was insufficient information to review 50 of the 688 murder cases that were part
of the study, 638 total cases remained for expert review analysis. Of these 638, there were 17
cases in which the prosecution sought or obtained a sentence of death.7 Because our research
objective was to identify cases in which, under the statute, the prosecutor could have sought
death, for purposes of our initial review of the data for this report, we did not review the death
noticed cases. For present purposes, we defer to the prosecution’s assertion that one or more
aggravating factors was present in each of these death-noticed cases. Consequently, 621 total
cases (638 – 17) were reviewed and coded by the experts for purposes of this study.
20. For the 621 cases that were included in the study and for which there was sufficient information
in the case file, the expert team assessed how many of these cases were procedurally or
factually first-degree murder cases. Specifically, in assessing whether a case was a first degree
murder for purposes of the study, we considered whether: (a) the defendant was actually
convicted of first-degree murder (procedural M1); or (b) the facts in the case file provided by
the DCT were legally sufficient to support a first-degree murder charge (factual M1).
21. The standard we used in evaluating whether a case was a factual first degree murder was a legal
sufficiency standard. Under this standard, the question is not what the expert believes is the
correct factual determination in a given case, nor how a reasonable jury should resolve the
issue. Rather, the question is whether a Colorado appellate court would affirm a first-degree
murder conviction in the case if one were returned by a jury. That is, we reviewed the facts in
the case file, giving particular weight to available appellate court opinions, and determined
whether a jury verdict of guilty of first-degree murder would be supported by the facts when
viewed in the light most favorable to the prosecution. Cf. Jackson v. Virginia, 443 U.S. 307, 319
(1979) (holding that the evidence is sufficient to support a conviction whenever, “after viewing
the evidence in the light most favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt.”); see also People v.
Bennett, 183 Colo. 125, 132 (1973) (“The same test for measuring the sufficiency of evidence
[applies] whether the evidence is direct or circumstantial.”). The exact language of the standard
agreed upon by the expert team is: “Whether, based on all of the information contained in the
file -- the arrest warrant affidavit, the statement of the defendant, the facts as stated in an
appellate opinion, etc. -- there exists sufficient evidence to support on appeal a jury verdict of
M1 and/or an aggravating factor? That is, our ultimate inquiry is: could a jury hearing this
7 The prosecution actually sought death in 22 cases during the relevant period of time. However, five of these
death prosecutions resulted in acquittals on the first-degree murder charge, supra paragraph 14. Accordingly, five of the initial 662 cases excluded by the DCT (1350 -662 = 688 cases for expert review) were cases in which the prosecution had originally sought the death penalty, but the defendant was either convicted at trial of a lesser offense, see People v. Jimenez (Teller County, 2000CR178); People v. Wilkinson, (Adams County 2000CR638); People v. Sweeney (Adams County, 2000CR634); People v. (Manuel) Melina (Adams County 2000CR1675), or acquitted altogether, People v. Perez (Lincoln County 2005CR74). These cases were eliminated under the CFF Rule described in footnote 5. Accordingly, the total number of death noticed cases included in the study was 17. See infra note 11 (explaining that two of the death noticed cases were legally excluded from the study leaving the total number of death-noticed prosecutions for which a sentence of death was possible at 15).
7
evidence -- read in the light most favorable to the prosecution -- reasonably conclude that M1
and/or an aggravating factor was proven beyond a reasonable doubt?”
22. Based on the approach set forth above, the expert team coded each of the 621 cases as either
first degree murder or not first degree murder. First, we identified those cases for which there
was a procedural – i.e., actual – first degree murder conviction. For those cases where there
was not a first degree murder conviction, and for which the jury did not explicitly reject first
degree murder, we made a determination of whether the facts were sufficient to satisfy the
legal sufficiency standard – that is, whether they were factually first degree murder. The DCT
compiled our conclusions.
23. Of the cases studied, there were 535 cases that were either factually or procedurally first degree
murder. There were 86 cases that we concluded were not factually or procedurally first degree
murder cases.
24. Of the 535 cases that were coded as either factually or procedurally first degree murder cases,
we determined that an additional 6 cases had to be excluded from our aggravating factor study
on the basis of Eighth Amendment proportionality principles.8 Specifically, we concluded that 6
of the 535 first degree murder cases had to be excluded based on the defendant’s insufficient
participation in the killing. Enmund v. Florida, 458 U.S. 782 (1982); Tison v. Arizona, 481 U.S. 137
(1987). As with cases excluded by the DCT because the defendant was a juvenile, these cases
were excluded from the study on the basis of the defendant’s ineligibility for the death penalty.9
Thus, of the entire universe of cases for which there was sufficient information, we determined
that there were 529 (535-6 = 529) first degree murder cases that were not legally disqualified
from death eligibility.
25. For each of the 529 factual or procedural first degree murder cases, we assessed whether one or
more aggravating factors existed. That is to say, for every case defined as a factual or
procedural first degree murder for which there was not an Enmund/Tison exclusion, we
evaluated whether a statutory aggravating factor applied under the legal sufficiency standard
set forth above. Again, a sufficiency of the evidence standard, based on Jackson, was used to
determine whether, based on the facts in the case file, a reasonable jury could have found an
8 In the course of finalizing this study we expect that we will find additional cases that should be excluded based on
Eighth Amendment proportionality principles. The numbers presented in this report represent our best effort based on the time constraints imposed by the pending litigation. There will likely be minor adjustments to all of the figures in this report as we review and finalize our data analysis. 9It is also important to note that we did not apply a theory of vicarious aggravator liability. We assessed each
defendant’s individual culpability for the aggravating factors based on the statutory language. However, certain Colorado aggravating factors, based on existing case law and statutory text, do apply to a defendant even if he was not the killer.
8
aggravating factor beyond a reasonable doubt.10 As with the first degree murder analysis, we
did not code the cases based on what we believed was the correct factual determination, or
how we believed the jury should have resolved the issue. Instead, the question was whether
the facts were legally sufficient to support a jury finding of one or more aggravating factors –
that is, would a Colorado appellate court affirm a finding of an aggravating factor if the factor
were found by a jury. Moreover, we did not assess every possible aggravating factor for each
case file; instead, our research question was whether one or more aggravating factors are
supported by the evidence in the case file.
26. Based on our review of the 529 first degree murder cases, we found one or more aggravating
factors in 485 of the cases. In other words, we found that only 44 of the procedural and factual
first degree murder cases reviewed did not satisfy a legal sufficiency standard as to one or more
aggravating factors.
27. Colorado’s aggravating factor rate – the percentage of factual or procedural first degree murder
cases in which there was at least one aggravating factor – was calculated using the 485 cases in
which we found one or more aggravating factors, the 15 cases11 in which the prosecution
actually sought (and was legally permitted to seek) the death penalty during the period of this
study, and the 529 total first degree (non-death-noticed) cases. Specifically, we added the total
number of first degree murder cases for which we found one or more aggravating factors and
the number of Colorado death noticed cases (485 + 15 = 500), and divided this figure by the
total number of first degree, Enmund/Tison-eligible murder cases including death noticed cases
(529 + 15 = 544). Based on these numbers we concluded that Colorado’s aggravating factor rate
was 91.9% (500/544). In 91.9% of the factual or procedural first degree murder cases during the
twelve-year period studied, at least one aggravating factor was present.
28. We also evaluated the Colorado death prosecution rate for the relevant period of time. We
evaluated the prosecution rate both pre-trial (initial decision to formally seek death), and at
trial. To calculate the pretrial death prosecution rate, we divided the number of cases in which
10
This approach has been suggested by the Supreme Court. See Godfrey v. Georgia, 446 U.S. 420, 428-29 (1980) (suggesting that the breadth of an aggravator may be assessed by considering whether a “person of ordinary sensibility” would find the aggravator applicable to a particular factual situation); Maynard v. Cartwright, 486 U.S. 356, 364 (1988) (considering the breadth of an aggravator by assessing the circumstances in which an “ordinary person could honestly believe” that the aggravator applied). 11
As previously noted, supra note 7, the prosecution actually sought death in 22 cases during the relevant period of time. However, five of these death prosecutions resulted in acquittals on the first-degree murder charge and are, thus, not part of the study based on the CFF rule. Moreover, two of the prosecution’s 22 death notice prosecutions were legally barred: (1) People v. Vasquez (Adams County 2002CR2231) (based on Atkins v. Virginia, 536 U.S. 304 (2002)); and (2) People v. Hagos, 110 P.3d 1290 (Colo. 2005)(Denver County 1999CR2738)(based on retroactivity principles arising out of statutory changes stemming from Ring v. Arizona, 536 U.S. 584 (2002)). Accordingly, we treated the total number of death prosecutions as 15 – that is, there were 15 cases where the prosecution noticed death and was not legally barred from pursuing a death sentence at trial.
9
the prosecution formally sought the death penalty by the number of cases in which they could
have sought the death penalty. Excluding death prosecution cases that resulted in acquittals, of
which there were 5,12 and death prosecutions that were legally barred,13 the State sought death,
pretrial, in 15 cases, and, under the statute, it could have sought death in 500 cases.14
Consequently, the pretrial death prosecution rate was 15/500, or 3.0%. To calculate the trial
death prosecution rate, we looked at only those cases in which the prosecution continued to
pursue a sentence of death at the conclusion of the guilt-phase of the case, and compared the
number of those cases to the number of cases in which an aggravating factor was present. Of
the 15 death sentences pursued by the prosecution pretrial, there were only 5 cases in which
the death penalty was still being sought at the time of the sentencing phase trial.15 Accordingly,
the trial death prosecution rate was 5/500, or 1.0%.
29. We also evaluated the Colorado death sentence rate. To calculate the death sentence rate we
compared the actual number of death sentences during this period to the number of factual or
procedural first degree murders in which there was at least one aggravating factor present.
That is to say, we compared the number of cases in which the prosecution could have sought
death, based on the presence of one or more aggravating factors, with the number of cases in
which the prosecution obtained a sentence of death. Specifically, although there were 500
cases16 in which at least one aggravating factor was present and the prosecution could have
sought a sentence of death, a sentence of death was returned in only 3 cases. Accordingly,
Colorado has a death sentence rate of 3 out of 500, or 0.6%.17
12
See supra note 7. 13
Supra note 11. 14
The denominator, 500, is based upon 485 factual or procedural first degree murder cases in which at least one aggravating factor was present, plus the 15 death prosecutions. See supra paragraph 27; supra note 11 (calculating 15 as the total number of death noticed cases). 15
To determine that only 5 cases were still death cases at the time of the sentencing trial we eliminated the following cases from the 22 cases in which the prosecution originally sought death: (a) 5 acquittals on the first degree murder charge (see supra note 7); (b) 2 cases in which the death penalty was legally barred (see supra note 11), (c) 2 cases in which the prosecution dropped the death penalty prosecution; and (d) 8 cases that resulted in a guilty plea to first degree murder or to a lesser offense and in which no capital sentencing proceeding was held and no death sentence was imposed. 16
Supra note 14. 17
Even this figure overstates the death sentence rate for two reasons. First, of these three death sentences handed down during the relevant time period, none of them are final. Most notably, in order to be conservative, we have counted the 2003 death sentence for Edward Montour, Jr. as one of the three successful death prosecutions during the study period even though it was reversed by the Colorado Supreme Court. People v. Montour, 157 P.3d 489 (Colo. 2007). As of July 2012, Montour is pending a resentencing hearing. Second, the only other two death sentences, which arise out of the same double homicide, are not yet final as the state court review process has not yet concluded.
10
Conclusion
30. A capital sentencing system that renders the death penalty potentially applicable to such a high
percentage of first degree murders violates the Eighth Amendment. This is particularly true
where, as here, the actual rate of death sentences is so low.18 "When the punishment of death
is inflicted in a trivial number of the cases in which it is legally available, the conclusion is
virtually inescapable that it is being inflicted arbitrarily." Furman v. Georgia, 408 U.S. 238, 293
(1972) (Brennan, J., concurring). In his dissent in Furman, Justice Powell summarized the
available statistics regarding the rate at which persons who were convicted of capital murder
were actually sentenced to death.19 Notably, in Furman, the Justices struck down the capital
sentencing systems as wanton and unacceptably arbitrary where approximately 15-20% of those
eligible were actually sentenced to death.20 Given the results of our study as summarized
above, Colorado’s capital sentencing system cannot be reconciled with the strictures of the
Eighth Amendment.
31. Because of Colorado’s capacious definition of first degree murder, and in light of the expansive
list of 17 aggravating factors, a high percentage of defendants face the threat of a death
sentence. Of the cases in which a defendant could be convicted of first degree murder, a death
sentence could be sought 91.9% of the time. That is to say, prosecutors have nearly unchecked
statutory discretion to seek a death sentence in first degree murder cases under Colorado law.
The 91.9% aggravating factor rate for first degree murders in Colorado between January 1, 1999
and December 31, 2010, indicates that Colorado’s statutory system fails to genuinely narrow the
class of death eligible offenders as required by the Eighth Amendment to the U.S. Constitution.
Furman, 408 U.S. at 435 n. 19 (Powell, J., dissenting) (discussing the percentage of cases in
which “death was a statutorily permissible punishment”).
18
Supra paragraph 29. 19
Furman v. Georgia, 408 U.S. 238, 436, n. 19 (1972) (Powell, J., dissenting) (“No fully reliable statistics are available on the nationwide ratio of death sentences to cases in which death was a statutorily permissible punishment. At oral argument, counsel for petitioner in No. 69-5003 estimated that the ratio is 12 or 13 to one. Tr. of Oral Arg. in Furman v. Georgia, No. 69-5003, p. 11. Others have found a higher correlation. See McGee, Capital Punishment as Seen by a Correctional Administrator, 28 Fed. Prob., No. 2, pp. 11, 12 (1964) (one out of every five, or 20%, of persons convicted of murder received the death penalty in California); Bedau, Death Sentences in New Jersey 1907-1960, 19 Rutgers L. Rev. 1 (1964) (between 1916 and 1955, 157 out of 652 persons charged with murder received the death sentence in New Jersey-about 20%; between 1956 and 1960, 13 out of 61 received the death sentence-also about 20%); H. Kalven & H. Ziesel, The American Jury 435-436 (1966) (21 of 111 murder cases resulted in death sentences during three representative years during the mid-1950's); see also Koeninger, Capital Punishment in Texas, 1924-1968, 15 Crime & Delin. 132 (1969)”). 20
See, e.g., supra note 3.
11
32. The statutory scheme in place in Colorado fails to carefully limit prosecutorial, judge, and jury
discretion in seeking and imposing sentences of death and therefore does not mitigate the risk
of arbitrariness in the death penalty. This is a result of the large number and breadth of the
aggravating factors under Colorado law.21
33. This study allows us to document the extent to which Colorado’s capital sentencing statute fails
to genuinely narrow the class of death eligible offenders. Under the Colorado capital sentencing
system, many defendants are eligible, but almost none are actually sentenced to death.
Because Colorado’s aggravating factors so rarely result in actual death sentences, their use in
any given case is a violation of the Eighth Amendment. Furman, 408 U.S. at 309 (Stewart, J.,
concurring) (describing capital sentencing systems in which fewer than one in five eligible
defendants were sentenced to death as so arbitrary as to approximate “being struck by
lightning”).
34. We hereby affirm that we have read the foregoing declaration, and it is true and correct.
Colorado has seventeen separate statutory aggravating factors. C.R.S. § 18-1.3-1201(5). Commentators surveying capital sentencing systems across the country have identified jurisdictions with the same number or fewer aggravators as exceptional. See, e.g., Jeffrey L. Kirchmeier, Aggravating and Mitigating Factors: The Paradox of Today's Arbitrary and Mandatory Capital Punishment Scheme, 6 WM. & MARY BILL RTS. J. 345, 349 (1998) (describing some states that “have a large number of aggravating factors” and listing some examples: “Arizona has ten, South Carolina has eleven, Nevada has twelve, Illinois has fifteen, and Pennsylvania has seventeen aggravating circumstances.”).
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