Legislation could create death penalty mulligan

Colorado lawmakers will debate giving prosecutors a mulligan when seeking the death penalty.

State Representative Kim Ransom, R-Douglas County, is drafting legislation that would allow district attorneys to seat a second jury, if the first jury does not agree unanimously on life in prison or a death sentence.

"If there is a hung jury, there's always a question afterwards that there was a hung jury," said Ransom.

Twice this summer, Colorado juries rejected the death penalty in the Aurora theater shooting case and the Fero's Bar stabbing trial. In the Fero's Bar case, Dexter Lewis was found guilty of stabbing five people to death and then setting the place on fire.

Death penalty sentencing is a three-phase process:

Phase 1 - Aggravating Factors

• Do the factors exist for the defendant to face the death penalty?

Phase 2 - Mitigating Factors

• Does the defendant's life history outweigh the crime they committed?

Phase 3 - Life or Death

• Jurors must agree unanimously on the death penalty, otherwise the sentence is life in prison.

In the Aurora theater shooting trial, the jury went all the way to phase three, before not agreeing on a death sentence. In the Fero's Bar stabbing trial, Lewis was spared the death penalty when the jury could not agree on getting past phase two.

"It wasn't one specific case," said Ransom. "I don't want to run a bill that is affecting one specific case, one specific attorney, one specific trial."

"It's obviously in response to the James Holmes, Dexter Lewis life sentences. They want another shot of the death penalty," said attorney David Lane. "The juries that sentenced them to life were vetted for their belief in the death penalty and they couldn't get a unanimous jury, why do they think it's going to change?"

Lane defended Edward Montour, who was sentenced to death by a judge when Colorado law allowed for judges to determine death sentences. Montour was already serving a life sentence for killing his 11 month old daughter, Taylor, when he killed prison guard Eric Autobee at the Limon Correctional Facility in October 2002. His sentence was changed when the Colorado Supreme Court ruled that juries, and not judges, must impose death sentences. The day his second death penalty trial started, he agreed to a plea for life in prison.

"The history of the death penalty is that every time the legislature in the state of Colorado tinkers with the machinery of death, the Colorado Supreme Court finds it to be unconstitutional," said Lane. "Why they think the first juries in these cases are going to be any different the second time or the third time or the 10th time, is beyond me."

"Having the conversation is a good thing," said Ransom. "It is the law in Arizona right now."

This year in Arizona, Jodi Arias faced her second death penalty sentence trial after she was found guilty in 2013 of killing her ex-boyfriend.

The first jury did not unanimously agree on life in prison or the death penalty, and Arizona law allows for a second chance at seeking the death penalty if the jury is not unanimous.

"In Arizona, it's passed constitutional muster," said Ransom. "I think we're just trying to make sure that 'the people' are represented properly. In court, that's what the prosecutors say, they're appearing on behalf of 'the people.'"

The bill would also modify the second phase of sentencing, shifting some of the mitigating burden of proof to the defendant. Ransom did not know the exact language of the bill as it is still being drafted.

"That is blatantly unconstitutional under the federal Constitution, but again, I don't expect our legislators to understand the U.S. Constitution," said Lane.

The bill may be decided on by lawmakers, requiring a majority vote in both the House and the Senate, or it could be attempted as a referred measure to the voters, which first requires a two-thirds majority in both chambers.

"Whether we refer it or whether we try to accomplish this statutorily, I think it's important to have the conversation," said Morris. "I have spoken and put some feelers out, if you will, and there is bipartisan interest in this bill."

If the bill were to become law, it would not be retroactive; it could only be utilized on crimes committed after the law took effect.