Does the father of a victim in one death-penalty case have the right to contact family members in another capital case? And, under Colorado law, do prosecutors have any obligation to facilitate that conversation -- even if the discussion isn't going to help their cause?
The questions are key to a new controversy in the case of accused Aurora theater shooter James Holmes.
The current subject of raging debate in local criminal justice circles is DIVO -- not the pioneering weird-rock band, but an acronym for Defense Initiated Victim Outreach, a program that's assuming a growing role in high-stakes cases. As Melanie Asmar recently reported, the defense team representing Holmes has accused prosecutors of impeding their attempts to contact victims of the 2012 Aurora theater shootings, while prosecutors have claimed that the defense is improperly using the DIVO process to try to sway victims to oppose the death penalty.
But what hasn't been publicly disclosed -- thanks largely to Judge Carlos Samour's insistence on redacting the
blank out of public pleadings in the Holmes case -- is that one of the people seeking to reach out to victims is Bob Autobee, whose own views on the death penalty underwent a dramatic reversal as the effort to execute his son's killer dragged through the courts for almost twelve years.
A family photo of Eric Autobee.
In 2002, Autobee's son Eric, a 23-year-old correctional officer, was fatally attacked in the kitchen of the Limon prison by inmate Edward Montour Jr., who was already serving a life sentence for killing his eleven-week-old daughter. Montour pleaded guilty to murder, but the Colorado Supreme Court threw out his death sentence in 2007 because it hadn't been imposed by a jury. Bob Autobee, initially a strong supporter of the death penalty, gradually became disheartened by the numerous delays in the case and began to push for a life sentence instead.
After meeting with Montour in a restorative justice session, Autobee began picketing the Douglas County courthouse to protest Eighteenth Judicial District Attorney George Brauchler's insistence on pursuing Montour's execution; Brauchler's office even filed a motion in the case seeking to prevent Autobee from addressing the jury at trial about the death penalty or whether Montour should be executed.. But the case never got that far. Last March, just as the trial was starting, startling new evidence suggested that Montour may have been wrongly convicted in the infant death that put him in prison in the first place. Shortly thereafter, prosecutors agreed to let Montour plead guilty to first-degree murder and receive a life sentence.
David Lane during a 2013 television appearance.
A few weeks ago, Montour attorney David Lane, an outspoken opponent of the death penalty, forwarded a letter from Autobee to one of the victims in the Holmes case, urging the victim to distribute it to others. In the letter, Autobee invites victims to meet with him so he can "offer my insights into this emotional roller coaster in hopes that it may help you to both understand the process you are going through with the prosecution and trial of James Holmes, and to share with you how I finally came to a place of peace and tranquility after fighting the pain and torment I was undergoing for ten years." See the letter below.
Lane says the first victim he contacted evidently decided not to distribute the letter. A second contact sent the letter to a victim's advocate in the DA's office, "who never distributed it to anyone," Lane says. And that, the attorney suggests, is part of a deliberate effort by prosecutors to squelch DIVO efforts in the Holmes case.
"There's a statute in Colorado that says victims must be informed of their right to participate in restorative justice processes," Lane notes. "The DAs never tell victims that they have that right or explain what the process is. They're doing everything in their power not to expose any of the [theater shooting] victims to DIVO -- because they saw what happened in the Montour case. When Bob Autobee was exposed to DIVO, he did a complete turnaround on the death penalty."
District Attorney George Brauchler.
Autobee's letter merely offers to share his "journey" with other victims in the hope that it may aid their healing process, Lane adds. It's an offer any individual is free to decline, but Lane insists that Brauchler's office is still trying to muzzle Autobee and "hide this stuff from victims." In court filings, the prosecution has denied interfering with the defense's efforts to communicate with victims, while contending that the DIVO process exists primarily to advance the interests of the defense.
"That's complete bullshit," Lane retorts. "DIVO is not sinister. These are people trained in restorative justice. It's defense-initiated because the DAs are all about retributive justice. They're saying, 'If we can only kill James Holmes, you'll feel so much better.' The DA's victim advocates are not victim advocates -- they lie to victims to get them fired up to kill.
"The fact is, DIVO is a source of information for the victim that doesn't violate the attorney-client privilege. Their client is the victim; they're paid for by the defense teams because the defense teams think that ultimately good things will happen. But their loyalty is to the victim, not the defendant. We can't ask them to go do things if they don't think it's in the best interest of the victim."
Lane, of course, isn't shy about his own objectives: "I want to end the death penalty. I want to see James Holmes get a life sentence. I never hide that.... If victims start getting off the death-penalty bandwagon, if they start picketing in front of the courthouse like Autobee did, then George Brauchler has a serious problem."
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Who speaks for victims? Traditionally, it's been the representatives of "the people" -- the DA's office. But as our 2011 feature "The Victim Lobby" pointed out, the options available to crime victims have become more complex and conflicting as the victim-rights movement has gained in numbers and influence. And the DIVO process is emerging as one more milestone -- or stumbling block, depending on your point of view -- in the long road to justice.
Here's Bob Autobee's letter in its unredacted form.