In an unprecedented move, the El Paso County Coroner's Office has amended the death certificate in the 1997 death of a twelve-week-old infant, changing the cause of death from "homicide" to "undetermined" -- dealing yet another blow to prosecution efforts to seek the death penalty for the infant's father, Edward Montour Jr., for the murder of a corrections officer at the Limon prison in 2002. And the man who sent Montour to prison for life for killing his daughter now says that new evidence has convinced him that the death could have been accidental.
There's little doubt surrounding the crime for which Montour is now facing trial: his fatal attack on corrections officer Eric Autobee twelve years ago. He pleaded guilty to first-degree murder, but the Colorado Supreme Court threw out his death sentence in 2007 because it hadn't been imposed by a jury. The prosecution has since been mired in procedural delays, internal conflicts, and a highly public battle with Autobee's father, Bob, 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.
Prosecutors hoped to use the fact that Montour was already serving life for a prior homicide as an aggravating factor in his current trial. But earlier this month, Montour's defense team filed a motion that he was wrongfully convicted of beating his daughter Taylor to death and shouldn't have been in prison in the first place.
At the time of his daughter's fatal injuries, Montour insisted that he'd accidentally dropped Taylor when he stood up from a rocking chair, and that her head had struck the chair and then the floor. The El Paso County Coroner's Office took the position that the injuries were far too severe to have occurred in a short fall and were consistent with "having been thrown off a ten-story building." Among other injuries, the infant appeared to have suffered broken ribs, a broken femur and five separate points of impact on her head.
But after obtaining access to medical records and a review of X-rays, a battery of pathologists and pediatric radiologists consulted by the defense have all agreed that the baby's injuries were consistent with an accidental death. There was evidence of a metabolic bone disorder, such as rickets, which made her bones extremely brittle; the multiple cranial impact sites are actually the result of an internal bleed and swelling from one impact where she hit her head; the broken ribs and femur could well have come from CPR efforts and an attempt to insert an IV by medical personnel. While the opinions fall short of absolutely exonerating Montour, they were sufficient to persuade Leon Kelly, the chief deputy medical examiner in El Paso County, to reverse the finding of a former coroner and amend the death certificate.
The new review also prompted John Newsome, the lead prosecutor in the child abuse case, to write a letter acknowledging that at trial, "there was a lot of evidence presented by the doctors that is scientifically inaccurate." Montour's trial attorney failed to challenge any of that evidence.
"The original prosecution was based upon the simple premise that Mr. Montour's version of events was medically impossible," Newsome writes. "I argued that to a jury. Without expert medical certainty, I would not have been able to prove the case beyond a reasonable doubt."
Prosecutor John Topolnicki has maintained that Montour was still "constitutionally convicted" in his daughter's death, even if he's innocent of the crime, and that any reversal in that case shouldn't affect the death-penalty trial, for which jury selection has been underway for several weeks. But at a hearing this Thursday, scheduled to get underway at 11 a.m. in courtroom three of the Douglas County Courthouse, Topolnicki will be seeking to either exclude defense expert witnesses dealing with Taylor's death or to get another continuance for the trial. The defense is expected to argue that Montour's prior conviction should not be mentioned to the jury at all -- while at the same time suggesting that being labeled as a "baby killer" and persecuted by staff and other inmates may have contributed to the attack on Autobee. A defense motion filed this week asks District Judge Richard Caschette to take the death penalty off the table, based on Montour's "actual innocence" in the child-abuse case and the "unreliability" of his prior conviction.
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To read Newsome's letter, check out the filing below.
More from our Colorado Crimes archive circa January 6: "Video: Bob Autobee forgives Edward Montour for son's murder as death-penalty trial begins."