At a February hearing, Edward Montour sought to withdraw his guilty plea for a 2002 murder in an effort to avoid the death penalty he'd previously sought. The office of 18th Judicial District DA George Brauchler, who's also seeking death for accused Aurora theater shooter James Holmes, argued against such a move, but a judge has now granted it; see his order below. Montour attorney David Lane sees the ruling as just and uses strong language to criticize capital punishment, Brauchler and what he calls the "bloody 18th."
In 2002, as our Alan Prendergast has reported, Montour was an inmate at the Limon Correctional Facility, having been given a life sentence for the murder of his eleven-week-old daughter. While there, he killed again, using a heavy ladle found in the jail's kitchen to end the life of correctional officer Eric Autobee, 23.
Autobee was the first prison worker to be killed by an inmate in a Colorado Department of Corrections institution in 73 years.
Montour pleaded guilty to first-degree murder in 2003 and was sentenced to death -- something he appeared to invite. "He had been off his meds at the time of the crime and the guilty plea," Lane says. "But over time, he was finally appropriately medicated by the Department of Corrections, and now that his mental illness is no longer the driving force in his life," he no longer wants to "commit suicide by court."
Four years later, the Colorado Supreme Court tossed the death penalty because it was imposed by a panel of judges rather than a jury. But rather than take capital punishment off the table, Carol Chambers, Brauchler's predecessor as 18th Judicial District DA, sought to get the penalty reinstated, prompting a series of legal efforts on Lane's part.
In his view, "taking Montour through another penalty phase was a double-jeopardy violation." However, this theory was rejected by the Colorado Supreme Court, federal district court and the 10th Circuit Court of Appeals, and the U.S. Supreme Court refused to take the case -- "so we filed a motion to withdraw his guilty plea based on numerous problems that were associated with it, not the least of which was that the court and the DAs mis-advised him on the law when he was pleading guilty.
"He was told that if he pleaded guilty, he would lost his right to appeal his conviction and he was waiving all his constitutional rights, including his right to a lawyer. There were a lot of flat-out incorrect statements made in advising him of the consequences of the guilty plea."
Ultimately, though, Douglas County District Court Judge Richard B. Caschette used a different rationale to allow Montour to withdraw his plea. Lane shorthands it like so: "He had a long history of mental illness and he had been found not competent to proceed by one judge, who later reversed himself on that issue. So it was a very close question about whether he was competent. But in a death penalty case, the U.S. Supreme Court holds to a standard of 'heightened reliability,' and given that his competency was in question, the judge said he can withdraw his guilty plea and continue to trial."
Brauchler disagrees with this opinion even though Autobee's exhausted parent said in December that they now oppose further efforts to put Montour to death. Here's his complete statement:
"As with any murder case, the input of victims-such as the parents of Eric Autobee-is extremely important. However, my obligation to this community and to the pursuit of justice requires me to consider additional factors, including sending the message that we will not tolerate inmates murdering our prison guards. They deserve our protection. When a man already serving a life sentence for murder, kills a prison guard, a "new" life sentence defies justice, common sense, and makes the taking of Eric Autobee's life a "freebie."
If Edward Montour truly cares about the Autobees in this case-as his attorney alleges, Edward Montour is free to exercise his right to re-enter a plea of guilty and move forward with a sentencing hearing to permit the community to determine if he deserves death or life."
Unsurprisingly, Lane has no interest in taking Brauchler up on this last invitation -- and he also rejects the DA's use of the term "freebie."
"This is not a free murder," he maintains. Before killing Autobee, Montour "was in a medium-to-high-security prison where he had yard time, recreation time, a job to go to. He could go to classes, he would have dinner and all his meals in the communal dining hall. He had relative freedom compared to the solitary confinement he's been in since this case came through. He's living his life in a cell about the size of a king-size bed all day, every day."
Tom Clements, center, with Governor John Hickenlooper, left, at a meeting about the closure of the Fort Lyon Correctional Facility.
He adds that Colorado prison chief Tom Clements, who was recently murdered at his home, allegedly by parolee Evan Ebel, "testified at a pretrial hearing in September that there was no possible way Montour was ever going to get out of solitary confinement -- and there's a severe difference between the relative freedom he enjoyed in Limon relative to where he's at in CSP," the Colorado State Penitentiary near Cañon City. "Clements said, 'That's what we use as a threat to disruptive inmates -- that they're going to CSP. And that threat is significant, because they don't want to go there.'
"So when Brauchler says there's no more punishment, he's simply lying," he continues. "He's misleading the public. He's apparently as in love with the death penalty as Carol Chambers was, and I'd look him in the eye and say, 'You're lying that there's no penalty for the second murder.'"
More booking photos of Edward Montour.
Other Lane arguments against the death penalty in general, and its imposition on Montour in particular, include time, expense and the toll it takes on loved ones of victims.
"In the Montour case, we're eleven years down the road, and we're starting from square one," he says. "And that's one reason why the death penalty is being discredited all over the country. Nathan Dunlap" -- convicted for killing four people at a Chuck E. Cheese restaurant in Aurora circa 1993 -- "has been on death row for nearly twenty years now. So even assuming Montour gets the death penalty a year from now, or two years from now, they probably wouldn't execute him for twenty years-plus.
"Montour believes he'll die of natural causes before he gets a needle in his arm, and I believe he'll outlive everyone involved in this case -- DAs, attorneys, judges."
He thinks a similar scenario could take place in the case of accused theater shooter Holmes.
"What the Aurora theater victims don't understand is that this is the way of the death penalty. If Holmes is given life without parole, he would fade off into oblivion. He'd bounce back and forth between the state mental hospital and prison for their whole lives. But because they're seeking the death penalty, Holmes has no choice but to fight the case, and the victims will never get closure. By the time he's executed, there will be so many appeals, so many times when they have to go back to court and testify and re-live the nightmare. That's why the people in Arizona in the Gabby Giffords case said, 'Give Jared Loughner life without parole and it's over -- and no one has to worry about his conviction being overturned.'"
As Lane sees it, "Montour is illustrative of the problems with the death penalty. The case has probably already cost over a million in taxpayer dollars, and Brauchler is willing to spend any amount of money if that's what it takes to kill him. That's what's shocking about the bloody 18th."
Here's the order allowing Montour to withdraw his guilty plea.
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More from our Prison Life archive: "Edward Montour case: Was inmate a 'volunteer' for the death penalty?"