Murderers' Row

Until two years ago, Colorado juries weighed whether men deserved to die. Now judges decide their fate.

Attorneys for both sides wanted to determine which potential jurors might say they were willing to take the steps to determine if a convicted criminal should be put to death but would balk at actually doing so; they needed to know who would be willing to carefully weigh the evidence and do the right thing, no matter how many weeks, even months, they'd been sitting in a courtroom.

But while serving on a death-penalty case could be a lengthy ordeal for a juror, judges were paid to make difficult legal decisions every day. In fact, a death-penalty case was the only one in which the judge did not sentence the defendant -- and that included first-degree murder cases for which the death penalty wasn't sought. Making those tough calls was the judge's job.

A Talmey and Associates poll showed that 62 percent of the Colorado population approved of taking the death-penalty decision away from juries and giving it to judges. Although the defense bar fought it bitterly, lawmakers approved the proposal to replace juries with three-judge panels. Under the bill, each panel would consist of the trial judge and two judges selected by a computer at random from that judicial district and neighboring districts. The measure didn't outline how the judges were to arrive at their conclusion, nor did it take note of the fact that the judges were not required to be "death qualified," as jurors assigned to such cases had been.

Pat Tuthill carried this picture of her daughter at the trial of Peyton's murderer, Donta Page.
Pat Tuthill carried this picture of her daughter at the trial of Peyton's murderer, Donta Page.


Read more Westword coverage of Colorado's death penalty in Penalty Zone

Passed in the 1995 legislative session, the new system was to go into effect for murders committed after July 1, 1996.

Public defender Terri Brake already had tears in her eyes when she began her opening statement at Robert Harlan's death-penalty hearing. "This is the hardest thing I've ever done, to stand here with Robert's life ...," she said, her voice cracking. "I feel like it's in my hands, and it's tough.

"You have assured with your verdict that he will perish in prison. You have assured with your verdict that he will die a captive man, as punishment for what he has done...Robert Harlan will die in prison."

It was June 22, 1995. Unless the new death-penalty statute was thrown out by a higher court, this would be the last time that Brake would try to convince a jury to spare the life of a killer. At the start of the trial, she and her co-counsel, Kathleen Lord, had admitted that their client had murdered Rhonda Maloney. But they'd also maintained that the murder was a crime of opportunity rather than a premeditated act. Harlan had been driving along and stopped to render assistance, and then everything had turned sour. Drugs had caused him to do what he did to Maloney, they'd contended.

But the jury hadn't bought it and found Harlan guilty of first-degree murder after deliberation, first-degree sexual assault and kidnapping. Then it was on to the death-penalty hearing.

Opening for the prosecution, DA Bob Grant argued that Harlan killed Maloney to avoid being arrested for her rape and kidnapping. The state was seeking four other aggravating factors that made Harlan eligible for the death penalty, he said, including the fact that the murder was committed in a "heinous, cruel and depraved manner."

Brake was fighting to save her client's life. "You deserve to hear more than just a very small piece of a person," she told the jury. "We as citizens don't condemn people for only the bad things that they do. We listen to it all. We will show you the value that exists in Robert Harlan that you deserve to know about."

The crimes for which Harlan had been convicted "were evil acts," she admitted. "Nobody's denying that. But the soul of the man is not evil. You cannot kill only a small part of another life...If you decide he must die, then the good dies with him."

Brake had to pause several times during her one-hour opening, and she got several jurors crying along with her. At one point, the judge halted the proceedings so that the jurors could compose themselves.

The hearing was generating a great deal of interest outside of Adams County. Jeffco DA Dave Thomas and two of his prosecutors were there; the preliminary hearing of Albert Petrosky was less than a week away. Two months earlier, on April 28, Petrosky had driven to the grocery store where his estranged wife, Terry, worked. He'd shot her to death, then turned the gun on Dan Suazo, the 36-year-old store manager, and killed the father of two. In the parking lot, Petrosky had set up a sniper position with a high-caliber rifle: He then shot and killed the first police officer to arrive on the scene, Jefferson County sheriff's deputy Terry Mossbrucker, a father of six. One of Petrosky's public defenders, Jim Aber, sat on the defense side of the aisle at Harlan's hearing. And Arapahoe County Chief Deputy District Attorney Jim Peters was also watching this first day of arguments, in order to prepare for Nathan Dunlap's upcoming death-penalty hearing.

The prosecutors presented evidence that Rhonda was not Harlan's only female victim. One woman testified that she'd been sexually assaulted by Harlan in the bathroom of his house; another claimed he'd tied her up and raped her for two hours at his grandmother's. Female co-workers reported that he'd sexually harassed and frightened them. His ex-wife, Colleen Harlan, testified that he'd told her he drove around at night, looking for women walking alone so that he could think of ways to rape and kill them, then get away with it.

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