Update, 2:40 p.m.: Earlier today, Judge Richard Caschette issued a ruling denying District Attorney George Brauchler's motion to delay the murder trial of Edward Montour Jr. or to bar testimony from eleven defense expert witnesses. That sets the stage for opening statements in the death-penalty case to begin on Tuesday -- and for the defense to make its case that Montour was wrongfully convicted of the crime that put him in prison where, five years later, he fatally attacked Eric Autobee.
Our original report follows below.
Original post, February 28, 8:54 a.m.: Defense attorney David Lane accused Eighteenth Judicial District Attorney George Brauchler of snickering.
Brauchler accused Lane of posturing for the press and "trial by ambush."
And the man whose fate they were wrangling over, Edward Montour Jr., sat quietly in his chair while the attorneys argued, on the eve of his death-penalty trial, about whether there was going to be a trial at all.
Or whether, in the words of the presiding judge, the prosecution was going to "throw out the window six months of work" by further delaying the trial and telling the jury, selected over seven weeks from a pool of 2,100 people, to go home.
Thursday's hearing was the latest quagmire in the long-running effort by Brauchler -- and his two predecessors -- to execute Montour for the 2002 murder of corrections officer Eric Autobee at the Limon prison, where Montour was already serving a life sentence for beating to death his eleven-week-old daughter. Montour's original death sentence was thrown out by the Colorado Supreme Court in 2007, and his retrial has been bogged down in procedural problems, claims of mental illness and prosecutorial misconduct, and a highly public battle between the prosecution and the victim's father, Bob Autobee, who opposes the death penalty and wants to address the jury in the case about why he doesn't think his son's killer should be executed.
Three weeks ago, Lane's defense team dropped the biggest bombshell of all: testimony and reports from leading forensic experts that indicate the death of Montour's daughter may have been the result of an accidental fall, as Montour has always claimed. The evidence was so persuasive that the El Paso County Coroner's Office took the unprecedented step of amending the death certificate in the 1997 case, changing the cause of death from "homicide" to "undetermined." The defense contends that its client was wrongfully convicted and shouldn't have been in prison in the first place -- which, if true, greatly hampers the prosecution's effort to use his prior conviction as an aggravating factor in seeking the death penalty.
All of which prompted Brauchler to plead, before the skeptical Douglas County District Judge Richard Caschette, that either the expert witnesses should be barred from testifying or the trial needs to be delayed yet again to give his team more time to find experts to rebut Lane's experts. "There isn't some 1-800-CALL-AN-EXPERT for credible experts," Brauchler explained. "I need to find experts I trust to look at this."
If his experts end up agreeing with the opinions gathered by Lane, Brauchler suggested, he just might decide to re-evaluate his decision to seek death in the case. "If justice doesn't mean the death penalty, so be it," he said.
But Lane insisted that the prosecution, which had fought a continuance in the case just a few weeks ago, had stonewalled his team's discovery efforts in its determination to obtain the ultimate penalty. "The people threw roadblock after roadblock after roadbock in our path," he said. "They were the ones who were being obstructionists."
The reason Brauchler needs to find new experts, he added, is that several who were originally on the prosecution's side have changed their opinions after examining X-rays that indicate the infant's injuries could have been the result of a metabolic disease, such as rickets, that made her bones brittle. "Their experts are now our experts," Lane noted. He characterized Brauchler's expert hunt as "scouring the countryside to find charlatans and quacks who will say what we want them to say."
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And Brauchler's hint that he might retreat on the death penalty? "I have zero faith that this office is going to do anything but try to kill Edward Montour," Lane said. "I have no illusions that Mr. Brauchler is going to back off the death penalty."
Faced with throwing out a jury impaneled at great expense or proceeding with an increasingly messy case, Judge Caschette said he felt like he'd been placed in a box. But the last word went to the victim's father, who told the judge that he was opposed to any further delays in the trial, as much as he's opposed to killing his son's killer.
"At this point we're stuck in this terrible place," Bob Autobee said. "We see no way out. I wish this thing was over."
More from our Colorado Crimes archive circa February 14: "Bob Autobee on son's killer: 'I don't want to see anyone die.'"