Murderers' Row

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

And at closing, Little had his own description of Tenneson's personality defect: "He kills people." As the jury went off to deliberate, Little was confident that the defendant would soon be on death row.

In fact, the jurors accepted the prosecution's aggravators and determined that they outweighed any mitigating factors. But they were tripped up by the fourth step.

Eleven of the jurors quickly agreed with Little's assertion that Tenneson deserved to die. The last juror, however, refused to even participate in the deliberations; she had a "gut feeling" it wouldn't be right to vote for the death penalty. The rest of the jurors decided to go home and return the next day, when they might be able to convince the hold-out to at least take part in the discussions, as she'd been sworn to do when she was put on the jury. But the next day, she sat in a corner with her back to the others.

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

In any other criminal case, a vote of eleven to one either for or against the defendant would have resulted in a mistrial, and the whole process would begin again with a new trial and jury. But in a death-penalty case, a jury had to be unanimous if voting for the "ultimate punishment"; otherwise, the sentence was life in prison. Angry, the eleven jurors were forced to surrender, and Tenneson went to jail for life.

When the Colorado Supreme Court reviewed the Tenneson case, the justices reaffirmed the validity of the fourth step. In 1988, the Colorado Legislature revised the death-penalty statute to do away with the fourth step - or so lawmakers thought.

One night in June 1989, Dan Smith and Steve Curtis returned home from a double date and were accosted by two men who'd broken into their house in southeast Denver. The intruders were Joe Young and Kevin Fears, who were there to murder another roommate, Frank Magnusson.

Several months earlier, Magnusson had witnessed an armed robbery; he was able to identify Joe Young's older brother, Roger (also known as Roy) Young as one of the gunmen. With his trial for that robbery coming up, Roger Young, who'd been sent back to prison on a parole violation, was worried that one more conviction would land him behind bars for life as a habitual offender. He decided that Magnusson needed to be silenced, and he arranged for it over the phone.

The plan was to make the murder look like a burglary gone bad. Joe Young and Fears broke in and waited in the basement for Magnusson, while Roger Young's common-law wife, Christa, sat in the getaway car. The problem was that neither of the hit men knew what their target looked like. So they grabbed Smith and Curtis and knocked them around, demanding to know which one of them was Magnusson.

When they finally figured out the man they wanted wasn't home yet, they made Smith and Curtis lie on the living-room floor and called Christa to figure out what to do. While their victims listened, they decided they were going to have to kill them: The burglary-gone-awry plan wasn't going to work if they left witnesses alive.

Fears had the gun and shot Smith in the back of the head, killing him. He then shot Curtis, but the wound wasn't fatal, and Curtis was able to fool his assailant by playing dead. Magnusson arrived home just as Young and Fears were leaving through the back door. They chased him across the backyard, and Fears shot him to death.

Once again, Mike Little was on the prosecution team seeking the death penalty, this time for Fears and the Young brothers. But there was a legal hitch: The defendants' lawyers, including David Vela, the director of the Colorado Public Defender's Office, and David Kaplan, a former public defender, went to the Colorado Supreme Court, arguing that the death-penalty statute that lawmakers had just revised was unconstitutional. The third step now specified that the mitigators had to outweigh the aggravators or a defendant would receive the death penalty; that meant that even if the mitigators were judged equal to the aggravators, the defendant would be sentenced to die -- and that was unfair, the defense attorneys argued. The court agreed, ruling that the new statute was unconstitutional since it could subject clients to "cruel and unusual punishment."

In other states where the three-step process had been reviewed and judged constitutional, the wording was reversed: The aggravators had to outweigh the mitigators in order for a death sentence to be imposed. If they were equal, the defendant would not face execution. But rather than correct the statute's language, state lawmakers quickly endorsed the previous four-step process, and Colorado again had a death penalty. And the next time the legislature decided to change the death-penalty statute, lawmakers were careful not to tinker with the four-step process.

Almost a year after the trial had first been scheduled, prosecutors Little and Al LaCabe finally opened their case against Kevin Fears. With an eyewitness, Curtis, testifying to the murder of another eyewitness, the jury easily found Fears guilty of first-degree murder after deliberation, felony first-degree murder, attempted first-degree murder and burglary.

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