This week's feature, "Lethal Election," explores how the race for district attorney in the 18th Judicial District has drawn a national spotlight because the winner will have to decide whether to pursue the death penalty in prosecuting James Holmes, the suspect in the Aurora theater shootings. It's a hot topic, with one candidate accusing the other of "politicizing" the Holmes case on his Facebook page. But there's another life-or-death call pending in that district that nobody's talking about -- one the incoming DA will have to make shortly after taking office.
All three of the current occupants of Colorado's less-than-active death row were convicted in Arapahoe County, the most populous of the 18th's four counties. The state hasn't executed anyone since 1997, but there's a good chance Chuck E. Cheese killer Nathan Dunlap could have a date with the lethal injection gurney next year, after nearly two decades of legal wrangling. Fighting against his appeals, and those of fellow death-row inmates Robert Ray and Sir Mario Owens, is primarily the job of the Colorado Attorney General's Office -- although claims of prosecutorial misconduct in the Ray and Owens trials may yet drag the DA's office back into the fray. At the same time, current DA Carol Chambers's capital crimes squad has been leading the charge to put one other convicted killer on death row: Edward Montour, Jr.
In 2002 Montour, already serving a life sentence for killing his infant daughter, fatally attacked correctional officer Eric Autobee in an apparent effort to improve his bottom-feeder status at the Limon prison. He pleaded guilty to first degree murder, but the Colorado Supreme Court threw out his death sentence for that homicide in 2007 because it hadn't been imposed by a jury. Chambers's office has been seeking to get the death penalty reinstated in his case for the past five years.
A resentencing hearing is scheduled for February -- and the new district attorney will have to quickly decide whether to keep pushing for death, given the brinkmanship and hardball tactics of Montour's defense team. "We are on the cusp of filing a motion to withdraw his guilty plea," says Montour attorney David Lane. "That would put us all back at square one. It would be foolish, in my estimation, for the DA's office to jeopardize an in-the-bag first-degree murder conviction just for all the fun of trying to kill Edward Montour."
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Lane says his client has offered not to contest his murder conviction and "stay in a little supermax cell for the rest of his life" if the prosecution will forego its quest for execution. The arrangement, he says, would save the state considerable time and money in future appeals: "They can end it now, or they can continue to pursue the death penalty, which would probably prolong it for another twenty years."
Such an ultimatum may not have much traction with either candidate, Republican George Brauchler or Democrat Ethan Feldman, who have declined to speak about what they'd do in specific cases until after the election. In public forums, both men have stressed the importance of keeping the death penalty as an option in the most heinous cases -- and hang the cost, so to speak. But it's been ten years since Montour committed his last bit of heinousness, ten years in which his ultimate sentence -- life in isolation or execution? -- remains unresolved.
And, as Nathan Dunlap's experience demonstrates, in Colorado one can be condemned to die and still live on -- and on -- for decades to come.