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Murderers' Row

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

Powers had the backing of both police associations and the Council of District Attorneys, although not everyone favored a single judge making the decision. Many DAs, including Adams County's Bob Grant, who'd been elected to his post in November 1992, Jefferson County's Dave Thomas, and Bill Ritter, who'd taken over when Early had stepped down and had then been elected to continue as Denver DA in 1994, supported the idea of a panel of judges. They thought the system should still have a deliberative process and opportunity for debate, if for no other reason than that there was less chance of a sentence being overturned if several judges, rather than a single judge, kept an eye on the legal issues.

Even Governor Roy Romer preferred a three-judge panel, the system used in Nebraska, and said he'd refuse to sign legislation creating a single-judge system. Ultimately, the measure's proponents settled for the compromise, although some, including Powers, weren't too pleased by it.

District attorneys came to legislative hearings armed with assorted travesties of justice under the jury system. Grant, for example, used the case of Allen Thomas Jr., who'd broken into the home of a 71-year-old woman to get money for drugs, but wound up raping and beating the woman, then slashing her throat. Because an Adams County DA's employee was peripherally involved as a witness, the case had been moved to Arapahoe County, where it was tried by prosecutor Eva Wilson.

Thomas was convicted of first-degree murder after deliberation. But when it came time for the jurors to deliberate the evidence presented at his death-penalty hearing, one juror refused to participate. No amount of reasoning by the other jurors could budge her. The other eleven jurors went through the four-step process anyway. They agreed that the prosecution had proved its aggravators, which outweighed any mitigators. Once again, it was the fourth step that tripped up the prosecutors; once again, all it took was a single juror.

Prosecutors told legislators that a panel of judges -- who would rule based on the law, not emotions -- would bring "consistency" to death-penalty decisions. They said they were also thinking of future jurors, who would have the time-consuming, stressful death decision lifted from their shoulders; instead, it would be borne by judges, who were better equipped to handle it.

Ritter said he didn't know if the ultimate outcome in the Fears or Tenneson cases would have been different if judges had made the decision, but he testified that placing such an emotional burden on private citizens was asking too much.

"Death is different" is a common saying in the judicial system. In one sense, the comment reflects the huge workload engendered by death-penalty cases, including a mountain of legal paperwork created before, during and after the trial and subsequent hearing. And if the defendant is sentenced to die, several more mountains are created during appeals at the district, state and federal levels. But there's also an emotional load, not just for friends and families of the victims, but also for prosecutors and defense attorneys who try the cases, as well as the judges who preside over them.

The emotional load was particularly heavy for jury members. To hear a case carrying a potential death sentence, jurors had to be "death qualified," which meant that regardless of their personal feelings about the death penalty, they had agreed that they could, and would, participate in the step-by-step process that might lead to a death sentence. Defense lawyers had long complained that such qualifying tilted the playing field toward the prosecution. But without it, a juror might be seated who was adamantly opposed to the death penalty, making the entire penalty phase an exercise in futility before it even began. For prospective jurors to say they didn't approve of capital punishment did not always get them excused from duty, however; unless they demonstrated to the judge's satisfaction that they would never impose the death penalty no matter what the law said, they were still eligible.

While for non-capital cases, jury selection rarely lasts longer than a couple of days, and usually closer to a few hours, the process was much more complicated when the crime was murder and carried the possibility of a death-penalty sentence. Simply selecting twelve jurors and usually four alternates could take weeks. Knowing that lawyer challenges and a general reluctance to serve on death-penalty cases cut into the pool, court administrators often called in hundreds of prospective jurors to ensure that there would be enough to choose from. Because the trial would likely run long and then might move into a second phase, judges often were inclined to let people off on "hardship" excuses -- the housewife with young children at home, for example, or the small-business owner who couldn't afford such a loss of time. But once solid citizens with jobs and inescapable responsibilities were dismissed, the jury pool was not just smaller, it was narrower and less representative of the community.

Lawyers took particular care when choosing juries for death-penalty cases. They phrased their questions carefully during voir dire, when they could quiz prospective jurors. Lawyers from both sides had a limited number of peremptory challenges with which they could dismiss someone without giving a reason. But they could also challenge the seating of a juror "for cause" -- if, for example, a juror had already formed an unalterable opinion about the case based on media reports. The judge had to agree to any "for cause" dismissals, and the other side had the option of arguing against them.

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