Murderers' Row

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

In 1861, territorial lawmakers decided that only murder and voluntary manslaughter were punishable by death; in 1874, two years before Colorado became a state, crimes related to mining claims were added to that list. The Colorado Legislature abolished the death penalty in 1897, only to reinstate it four years later -- although not for anyone under the age of eighteen or those convicted of murder based on circumstantial evidence. The impetus for the death penalty's revival had come in 1900, when a mob in Limon burned a suspected child-killer to death. Lawmakers reasoned that the absence of the death penalty had resulted in more violent criminals -- as well as more frustrated citizens willing to take justice into their own hands, if need be.

Death by hanging remained the official means of execution until the early 1930s, when Eddie Ives was hanged for two murders -- twice. The first time, the rope broke, and Ives, who'd proclaimed his innocence right up to the last minute, was dropped on his head. The executioners strung him back up, but because Ives weighed so little, the noose didn't break his neck. It took fifteen gruesome minutes for him to strangle.

With Ives's sorry end in mind, in 1933 legislators made the gas chamber the state's preferred method of execution. One of the most infamous killers put to death in the gas chamber was John Gilbert Graham, who was executed in 1957 for placing a bomb aboard a United Airlines flight and killing all 39 people aboard -- including his mother, for whom he'd just taken out a $38,000 insurance policy. The last man executed in the chamber was Luis Jose Monge, killed in 1967 for the murder of his wife and three of their children. Monge's death brought to 77 the number of criminals executed by Colorado. But then a series of decisions by the U.S. Supreme Court put the death penalty on hold across the nation.

Donta Page
Donta Page
Gary Davis was executed in October 1997 for the murder of Virginia May.
Brett Amole
Gary Davis was executed in October 1997 for the murder of Virginia May.


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

Although the high court had always tinkered with the particulars of the death penalty, including one decision that prohibited death sentences for rape or kidnapping, these rulings cut to the very heart of its constitutionality, primarily on the grounds that it violated Eighth Amendment protections against "cruel and unusual punishment." They culminated in Furman v. Georgia in 1972, when the court voted 5-4 to abolish the death penalty in the 32 states that then had the option, including Colorado. The majority opinion held that jurors had far too much discretion and not enough guidance -- including what might set a murder that justified capital punishment apart from one that didn't, and what might differentiate one murderer from another -- and that therefore, the death penalty was too often handed down in an "arbitrary and capricious" manner. As a result of that decision, more than 600 prisoners across the country found their sentences commuted to life in prison.

In 1976, the Supreme Court ruled that capital punishment was constitutional as long as judges and/or jurors were allowed some discretion on when to impose it and were given guidelines to follow. One of the ramifications of this decision was that capital cases were now divided into a guilt phase and a penalty phase, with a separate trial for each. For the penalty phase, most states created a process that included the consideration of "aggravating factors" that might qualify a crime for the death penalty, as well as "mitigating factors," which might explain why a criminal did not deserve to die, if not excuse him.

In 1974, even before the Supreme Court paved the way for the return of the death penalty, Coloradans had voted overwhelmingly -- 451,401 to 286,805 -- to bring it back. After that, the state legislature proceeded to pass a statute that outlined the death-penalty process in a way lawmakers hoped would satisfy the Supreme Court.

Some changes were a matter of semantics: "Premeditated first-degree murder," for example, was switched to "first-degree murder after deliberation." The lawmakers' rationale was that premeditation invoked the image of a killing that was planned well in advance and then carried out; legally, deliberation was defined as the time it took to consciously decide to kill someone -- from a moment to months, even years.

Under the state's new statute, a district attorney would first determine whether the facts of the crime fit the criteria for a "capital case" eligible for the death penalty, either as first-degree murder after deliberation or murder committed to cover up the commission of, or in furtherance of, another felony, also known as "felony murder." Prior to trial, the DA had to file a motion with the court indicating that the prosecution team would be seeking the death penalty. Then, if the defendant was found guilty, a death-penalty hearing would follow.

That hearing would begin with opening statements from both sides. Then the prosecution would present its evidence to prove "beyond a reasonable doubt" that at least one of more than a dozen legally proscribed aggravating factors existed. And the defense attorneys would present their evidence of mitigating factors; the Colorado statute listed five possibilities.

After the defense rested its case, both sides would present closing arguments. These were often occasions of high drama, as attorneys implored, pleaded and demanded that the jury see the wisdom of their views. Finally, because the state had the burden of proving its case, the prosecution would get one last rebuttal before the life-or-death decision was turned over to the jury.

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