The State of Colorado has managed to execute one murderer in the past forty years. Its death row, current population one, is among the smallest in the country. For four years after a 2002 U.S. Supreme Court decision threw out the state's system of having three judges decide whether an inmate should be executed, not a single new capital case was filed.
Some prosecutors regard the pursuit of the death penalty in the Centennial State as an exercise in futility. Even for the most heinous crimes, they say, it's difficult to get juries to impose the ultimate sentence — and then the appeals process can drag on for a decade or more, with taxpayers shelling out millions to fund both sides of the court battle. A recent memo to Governor Bill Ritter from the Colorado Attorney General's Office says it's not unusual for the defense in a death-penalty case to file between 300 and 400 motions, all of which must be answered by the prosecution. There are district attorneys who would rather undergo a colonoscopy with a garden hose than face such a gauntlet of budget-busting paperwork and frustration.
Then there's Carol Chambers, the maverick district attorney of the 18th Judicial District, which includes Arapahoe, Douglas, Elbert and Lincoln counties. Her office is pursuing six of the seven capital murder cases now under way in Colorado. The crusade has drawn heat from death-penalty opponents, but it's also attracting scrutiny from the state legislature.
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Using a 130-year-old statute that requires the Colorado Department of Corrections to reimburse counties for prosecuting crimes committed inside state prisons, Chambers has found an unusual way to pay for half of her death-penalty cases. She's billed the DOC hundreds of thousands of dollars in recent months, effectively shifting the cost of trying to execute three inmates from her county-funded budget to Colorado coffers. The tactic has forced prison officials to go to state lawmakers, seeking a special fund for "payments to district attorneys," and raised questions about whether Chambers can bill the state for the entire salaries of employees in her office, including a chief deputy making $131,000 a year.
"Carol Chambers has turned her death machine into a cash cow," says attorney David Lane, an inveterate death-penalty opponent who is representing one of the prisoners facing possible execution. "I've never seen a capital case go this way. The only explanation I can see is that it's a big moneymaker for her office. Killing people is big business for them."
Chambers denies that there's any profit motive involved in her office's reinvigorated pursuit of the death penalty. "There is nothing inflated or improper about our bill to the Department of Corrections," she insists. "There is no financial incentive in the litigation."
Controversy is nothing new to Chambers, who took office in 2004 after an upset victory in the Republican primary. Vowing to streamline the processes of justice in booming Arapahoe and Douglas counties, she's filed grievances against defense attorneys she considers unprofessional and ordered her staff to time judges' breaks. In 2006, a disciplinary panel publicly reprimanded her for interfering in a civil case involving a political ally.
She's also pursued habitual criminal charges against hundreds of chronic but low-level offenders, forcing them to accept lengthy prison terms in plea deals or risk more draconian sentences by going to trial ("The Punisher," February 8, 2007). "My objective has never been to make everybody like me," Chambers told Westword in an interview last year. "I'm going to do what I was elected to do."
But nothing has stirred up more debate than the number of capital cases Chambers is now pressing. In particular, her decision to seek death in the cases of David Bueno and Alejandro Perez, two state prisoners charged with the 2004 fatal stabbing of inmate Jeffrey Heird at the Limon Correctional Facility, has perplexed capital-punishment opponents. Bueno's trial started a few weeks ago and is expected to last months; a trial date for Perez has not yet been scheduled.
"It has been a head-scratcher from day one why this is a death-penalty case," Lane says. "In the history of the state, Colorado has never sought the death penalty for a prisoner killing another prisoner."
Federal prosecutors did seek death in the case of William and Rudy Sablan, cousins charged with the disembowelment of fellow inmate Joey Estrella in the most restrictive cell block of the Florence high-security penitentiary ("Marked for Death," May 25, 2000). But even in that exceptionally gruesome federal case, William Sablan was found guilty last year but spared execution. Rudy Sablan has yet to go to trial.
The Limon case appears to be a gang-related killing. Investigators believe that Heird, who allegedly had a close relationship with a female corrections officer, was killed because he failed to tip off gang members of an impending drug bust he learned about from the guard. At a meeting last year, Lane says, Chambers was asked by defense attorneys why she was seeking the death penalty in an inmate-on-inmate homicide, and she responded, "My reasons are private."
"A publicly elected official making the most important decision she can make, and her reasons are private? That's shocking," Lane says.
Chambers didn't respond to a request for comment on that conversation. She says the reasons for seeking the death penalty in any given case can be found in the list of "aggravators" the prosecution submits to the court. One such aggravator can be a defendant's prior record, and Perez has killed before; he's already serving 32 years for a 1997 second-degree-murder conviction. But Chambers declines to provide specifics of her rationale for seeking to execute two of the three defendants in the Heird case. (The third inmate charged in the death, Michael Ramirez, allegedly served as an accessory and is not facing death.)
"We do not provide any elaboration concerning this list of aggravators in advance of the sentencing phase," Chambers says, "to avoid that information winding up in the press and making it more difficult to select a fair and impartial jury."
But Lane sees another reason for the DA to seek to kill his client: Because the homicide happened in a prison, she doesn't have to pick up the tab for the prosecution. "What makes it a capital case is that Carol Chambers is making money hand over fist by pursuing it as a capital case," he says.
Documents obtained by Westword indicate that the DA billed the DOC $204,000 for work on the case in the first six months of 2007. That includes the entire salary and benefits package of Chief Deputy District Attorney Dan May, a paralegal and an investigator — all of whom are presumably spending all of their working time on the Bueno-Perez prosecution — as well as a good chunk of the salaries of two other prosecutors, a legal intern and a legal secretary. The bill also includes nearly $10,000 in expert-witness fees, $50 per day travel allowances, mileage charges, lodging and office supplies. In addition, Chambers's office has charged the DOC more than $15,000 in recent months for costs associated with the resentencing of Edward Montour Jr., a Limon inmate who killed a corrections officer in 2002 and whose judge-imposed death sentence was overturned on appeal.
The arrangement has raised eyebrows on the legislature's Joint Budget Committee, which recently was hit up for a special $290,000 line-item request by prison officials to deal with past and ongoing prosecution bills. Lawmakers grudgingly approved two-thirds of the payment and instructed prison officials to return for more as the bills mount up. "Our obligation is to follow the statute until somebody changes it," says DOC spokeswoman Katherine Sanguinetti.
"We are paying Carol Chambers's office to pursue death-penalty cases when everyone involved knows that the death penalty won't be carried out," says state representative Paul Weissmann, who voted against giving the DOC supplemental funding. "It is an enormous waste of taxpayer dollars and yet another reason why the death penalty should be eliminated in this state."
Lane filed a lengthy motion in the Perez case in January, arguing that the billing arrangement has contaminated the independence of the prosecution and provided a financial incentive to pursue the death penalty against his client. He also contends that the statute only allows Chambers to recoup actual prosecution costs, not the salaries of her employees, and claims that the billings are inflated with lawyerly padding — for example, charging a mileage rate in excess of what state employees are allowed and billing phone calls in no less than quarter-hour increments, even though they might last only a minute or two. "They're making a huge profit," he insists.
Chambers responds that her billings reflect "an overconservative estimate" of the time her staff is actually spending on the case. Her office shifted from billing by the hour to assessing portions of staff salaries in the latter half of 2007, she says, and that includes May's entire compensation, an arrangement that she contends actually reduces the amount billed. "Our staff ends up working more time on these cases than we are billing the DOC for," she says.
The prosecution has little control over the costs of a death-penalty case, she adds: "The state gives the court-appointed criminal defense bar enormous resources to litigate these cases, and the defense bar uses them. That is what drives the cost up into the millions of dollars. The defense bar spends an enormous amount of money, continues these cases for as long as they can, and then argues that the death penalty costs too much to pursue."
"If the defense has filed one frivolous motion in any death penalty case her office is prosecuting," Lane counters, "she's obligated to seek sanctions against anyone who does that, and she should file a grievance against them as well. It just hasn't happened. People spending their life's energies defending these cases aren't being frivolous."
Last week, attorneys for Nathan Dunlap, Colorado's sole inmate on death row, filed a 750-page motion in federal court seeking to overturn his death sentence, which has been under appeal for twelve years. Nationally, the legal costs associated with executions have gone up considerably since 1999, even as the annual number of executions has dropped from 98 to 42, according to data compiled by the Death Penalty Information Center, a group opposed to the practice. California, which has 660 inmates awaiting execution, spends $114 million a year beyond the costs of keeping convicts locked up for life to maintain its system. Florida, which has executed 44 inmates since 1976 and has 397 more to go, spends $51 million a year more than it would cost to keep all first-degree murderers in prison for life; that works out to $24 million per execution. Last year a legislative council pegged Colorado's death-penalty costs at $770,000 a year, but that is bound to climb sharply if the seven defendants now facing capital cases are actually sentenced to death (see story, page 24).
Legislative staffers responded to the DOC's request to double its usual allotment for prosecutions by suggesting that lawmakers may want to repeal the statute involved to prevent its abuse. "It is the staff's understanding that the statute...was intended to provide rural counties with assistance when prisons in the county drive prosecution costs," one analysis states. "However, staff has been informed that larger counties are starting to request reimbursement under this statute even for prosecuting alleged crimes [involving] offenders in community corrections...these payments could increase dramatically."
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A separate part of Lane's motion seeks the removal of special prosecutor Daniel Edwards, who once represented Perez in one phase of his 1997 murder case — the same case that's now an "aggravator" in seeking a lethal injection for Perez. A judge has ruled that Edwards can't work directly on the Perez prosecution, but Lane thinks the prosecutor is ethically obligated to remove himself from the Bueno case as well, since the two are so intertwined. "He represented Alejandro Perez on the very murder conviction Edwards now employs in the effort to execute him," the motion notes, "and Alejandro Perez objects to his lawyer trying to kill him."
Chambers, who is seeking a second term this fall, declines to comment on the Edwards matter until the judge has ruled on it. However, she notes that the judge in the Bueno case rebuffed a similar effort to disqualify Edwards and Chambers's office from that case. A spokeswoman said the district attorney's office will not comment on specific legal issues in the Bueno and Perez cases because they are ongoing.
Ongoing — and with the Bueno trial under way and Perez still to come, the meter is ticking at a furious pace.