Outside the world of prosecutors, the tiff over cases going to trial may not seem that meaningful. But it highlights a deeper disagreement between the two camps, over which candidate has the more pertinent hands-on experience prosecuting murderers — particularly in potential death-penalty cases.
Both candidates say they have the resolve to seek the ultimate penalty when warranted. Yet their actual brushes with the procedure are quite different. Feldman has been involved in two cases in which the death penalty was on the table — once as a prosecutor, once as a defense attorney. While working for Gallagher, he sought execution for a janitor who'd killed a receptionist at an Aurora hospital and then had sex with the corpse. A sanity hearing failed to win the defendant a ticket to the mental hospital, but on the eve of the criminal trial, Gallagher agreed to a plea that included a life sentence.
Anthony Camera
DA candidates Ethan Feldman (above) and George Brauchler have both been shaped by their experiences as prosecutors and defense attorneys — and in Feldman's case, a long tenure as a county court judge.
DA candidate George Brauchler.
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See also:
- James Holmes case exploited on Facebook by district attorney candidate?
- Edward Montour: The other death-penalty decision facing the new DA
Related stories by Alan Prendergast from the
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Sucker Punch: ‘Big Bitch’ policy could bite fighting concertgoer,” May 22, 2012.
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"Welcome to Arapahell,” November 24, 2011.
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Carol Chambers under fire for giving witness a car in death-penalty case,” May 13, 2011.
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Perez acquittal: A stunning rebuke of Chambers’s death-penalty chase?,” February 2, 2011.
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The Good, the Bad and the Mad: What happens to the mentally ill in the justice system is crazy,” May 29, 2008.
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Bad Execution: Judge blasts prosecution misconduct in death-penalty case,” April 10, 2008.
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Arapahoe County DA charges death-penalty fees to the state,” February 28, 2008.
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A Thumb on the Scales: The DA weighs in on the wrong case,” February 8, 2007.
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Carol Chambers: The Punisher,” February 8, 2007.
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A few years later, Feldman defended Ross David Thomas, a New Mexico prison escapee facing execution for the murder of an Aurora liquor-store clerk during a robbery. Feldman was successful in excluding evidence of other crimes Thomas had committed during his rampage, including a kidnapping and two other shootings. Thomas was convicted, but he was spared execution after Feldman argued that the death penalty wasn't fairly applied in Colorado. He received a sentence of life with parole.
Brauchler wonders how his opponent could make such a strong case against the death penalty as a defense attorney and now be expected to pursue it. But Feldman says the state's approach to execution has changed greatly since Thomas went to trial in 1983. "The legislature has fine-tuned the process," he says. "There's thirty years of legal precedent, quite a body of law that has cleared up a lot of things."
Only one offender has been executed in Colorado in the past four decades, and state lawmakers came within one vote of abolishing the death penalty in 2009. Despite the cost and delays involved in the process — Chuck E. Cheese killer Nathan Dunlap, who's been on death row for nearly twenty years, may finally be executed next year — Feldman says he'd have no problem seeking death in particularly heinous cases. "You make a decision on the evidence and the strength of the case, not extraneous factors," he says. "When I was a judge, I never took into account whether the jails were overcrowded in determining a sentence. That's for the executive branch to figure out."
Brauchler, too, says he's in favor of keeping the death penalty as an option in the most serious cases — though he suspects he'd use it differently than Chambers, who stated an intention to seek death for the trigger man in a murder-for-hire case and then relented after obtaining a life sentence.
"I don't want the death penalty to go away," he says. "But I also believe these are not charges to be used to scare somebody into pleading guilty. It's not to be used as a tool."
Court records indicate that Brauchler had only two homicide cases that went to juries while he was a Jefferson County prosecutor — and in one of those, the charge wasn't murder, but solicitation to commit murder, the case of the inmate who was snitched out in his effort to find someone to kill a deputy over a bad haircut. The records aren't complete, but Brauchler doesn't dispute them; he says he doesn't "count coup" over the cases that actually went to trial. He has been involved in other serious prosecutions as a JAG officer, including the private who shot the Taliban detainee and a vehicular-homicide case at Fort Carson last year against a soldier whose drunk driving caused the death of his two passengers. But only one had the potential to be a death-penalty case.
In 2006, Brauchler was asked to assist in the court-martial of Jeffery White, an Army truck driver stationed in Hawaii who was accused of beating and strangling his ex-girlfriend, then running her over with her car. "I got a call from the deputy judge advocate, asking me to take all of my reserve time — it added up to like six weeks — and help out," he says. "I was a brand-new major, and they put me on this would-be capital case because of my experience."
Brauchler's involvement was limited to the Article 32 hearing, a procedure akin to a preliminary hearing, during which the prosecution advocated for the death penalty, stressing evidence of calculation, torture and brutality in White's actions. He wasn't around for the actual trial, when prosecutors obtained a life sentence for White after a general's decision not to pursue death.
"I've never said I went to trial on a death-penalty case, because that's not true," Brauchler explains. "But if you want to know our hearts and minds on the death penalty, this is a case where I thought the death penalty was appropriate, and I went to court and asked for it."
The lead prosecutor on the case, David Clark, says that he and Brauchler were "probably on the same page" in urging death but were overruled. "I don't recall the command ever taking a serious look at the death penalty," says Clark, now an attorney in private practice in Alabama. Still, Brauchler's brief involvement in the case made a lasting impression on him, he adds: "He absolutely blew me away with his legal skills. I definitely looked to him as a mentor."
