Although District Attorney Carol Chambers will undertake an apparently thorough and deliberate process in deciding whether to seek the death penalty in the trial of James Holmes, the end result is a foregone conclusion. The law, her inclination, and the politics of the situation leave her no choice.
The law in this case is pretty clear. In Colorado you only need one of seventeen aggravating factors to qualify a defendant for the death penalty. The most clearly applicable “aggravator” here is that the defendant “intentionally killed more than one person in one criminal episode.”
The politics are almost as clear. District Attorney Carol Chambers will be out of office at the end of the year. The conventional wisdom is that the decision on the death penalty will be made in the next two months, no later than Thanksgiving, well before the end of her term. Chambers is a controversial DA who had gotten in trouble with the bar and the judges in her judicial district. She has not, however, hesitated to seek the death penalty in cases of much less magnitude than this one. (Nor has she always succeeded).
Typically, the prosecutors sit down and review the evidence, look for “aggravators” and “mitigators,” and talk with the families of the victims. They ask themselves whether, given the venue and the crime, they have a realistic chance of getting death if they seek it. The families can present problems; difficulties arise when they split on the question, and here one victim who survived has already said he forgives Holmes and doesn’t want him to be executed. The victims of those killed might well have different views.
One must wonder if the prosecutors have a real chance of convincing a jury to put Holmes to death. There are three persons on death row in Colorado, and only one inmate, Gary Davis, has been executed since the reinstitution of the death penalty in 1976. Nathan Dunlap, the Chucky Cheese murderer, had been on the row for twenty years. But don’t forget that Denver jurors sentenced McVeigh to death for the Oklahoma bombing murders. You could argue that Holmes’ crime was more cruel and heinous because the victims could see what was coming before they died. Arapahoe County, where this case will be tried unless venue is changed, is much more conservative than Denver.
If Chambers does not seek the death penalty for Holmes, she would have to explain why, and in that process would most likely have to lay out the weaknesses of her case, for the defense and the world to see. And while it’s early, so far we’ve seen no evidence of any “mitigators,” such as physical or sexual child abuse suffered by Holmes.
Chambers will issue a press release to announce her decision to seek the death penalty for Holmes. I could draft it for her now.
A final note: Holmes’ eventual fate could turn on the vote of one Democratic state senator. In 2009, when the Democrats controlled the governor’s office and both houses, a bill to repeal the death penalty passed the House and came within one vote of passing in the Senate. (Whether Gov. Ritter, a Democrat and former Denver DA, would have signed it is another question).
It’s interesting to think of the fate of such a bill were it to be introduced in the legislature, or put to popular vote, today in Colorado.
This post was contributed by Harry N. MacLean, former First Assistant Attorney General for the Colorado Department of Law. He is an Edgar Award winner and New York Times best selling author. You can find out more about this author and his books by visiting his website, following him on Twitter or joining him on Facebook.
