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John Hickenlooper: Would He Commute Nathan Dunlap's Death Penalty If He Loses?

John Hickenlooper during the 2013 press conference when he announced his decision about Nathan Dunlap. Additional photos plus audio clips and more below.
John Hickenlooper during the 2013 press conference when he announced his decision about Nathan Dunlap. Additional photos plus audio clips and more below.

In June 2013, a month after Governor John Hickenlooper granted Chuck E. Cheese killer Nathan Dunlap a reprieve from execution but didn't commute his sentence, a poll showed that Colorado voters disagreed with his decision by a three-to-one margin. Since then, the furor has faded -- but the issue is primed to move front-and-center in Hickenlooper's reelection bid against Republican hopeful Bob Beauprez thanks to a newly released audio recording (hear it below) in which Hick speculates about granting clemency to Dunlap should he lose.

Will the election come down to voters picking who's most likely to kill Dunlap? And how much ugliness will emerge along the way? Continue to get a sense of the possibilities, featuring responses from those on both sides of the controversy.

See also: John Hickenlooper Gives Nathan Dunlap Reprieve From Death Penalty but Doesn't Grant Clemency

There's no debate about the heinous nature of Dunlap's crimes. On December 14, 1993, as we've reported, Dunlap entered a Chuck E. Cheese branch from which he'd previously been fired and shot five employees: Margaret Kohlberg, fifty, Sylvia Crowell, nineteen, Ben Grant and Colleen O'Conner, both seventeen, and Bobby Stephens, twenty. Only Stephens survived, and he was very seriously wounded.

The scene of the crime.
The scene of the crime.

Dunlap was captured within hours and convicted in 1996, at which point the jury opted for execution. He's been on death row ever since, and last year, a week was scheduled for the completion of the sentence: August 18-24.

Then, on May 22, Hickenlooper announced his decision. Here's an excerpt from our post on the subject:

Hickenlooper thanked the victims of the murderous attack for sharing their stories with him and stressed that the decision had "weighed heavily on me for, well, it's been over a year now." But given his statutory responsibilities, "inaction wasn't an option."

Among the questions Hickenlooper asked himself in considering what he would do included mulling whether the death penalty was "just or moral" and "a benefit to the world." The more he studied the topic, the more he concluded that the system was imperfect -- and given the seriousness of the subject, "it really needs to be perfect."

He stressed that he had no doubt about "the heinous nature of the crimes committed," but he was troubled by "the inequity of the system.

"I am deeply respectful of the suffering and loss that occurs," he said. "But it's hard to see...the benefit of the capital punishment system" -- one that takes fifteen to twenty years to wind through the court system and "extends the emotional hardship for those families...."

In the end, he realized that he couldn't in good conscience give the go-ahead to "kill someone who is no risk to society."

Organizations that had lobbied against executing Dunlap immediately praised Hickenlooper's political courage, while pro-death penalty officials such as Colorado Attorney General John Suthers and Jeffco DA Peter Weir pilloried him. We've included coverage of their divergent arguments here.

Despite the passions on both sides, however, the Dunlap decision faded from the foreground during the intervening year-plus. But it's returned to the spotlight thanks to Complete Colorado, which has shared audio obtained by attorney and radio-talk-show host Craig Silverman in an open records request.

A look at the executive order.
A look at the executive order.

The 45-minute-plus clip comes from a Hickenlooper interview with CNN for a death-penalty piece that was supposed to air in July but has been delayed. One report suggests that it could be broadcast as soon as Friday, but (update) a CNN representative tells us it will debut at 10 p.m. Eastern on September 7. Its title: Eye For an Eye.

Complete Colorado highlights two exchanges. In the first, beginning at the 19:56 mark, a CNN interviewer asks: "But it (the death penalty) is an issue. And, you know, some of your opponents immediately announced that they were going to run on a death penalty platform, um, and in a sense, are putting themselves out there, and not that I'm thinking specifically of (Tom) Tancredo but I believe there are probably others, who are saying, 'Elect me, and we'll kill this guy.' Doesn't that feel kind of like a lynch mob? I mean in some, in some sense?"

To that, Hickenlooper responds: "Well we won't let that happen, I mean, that's obviously, that is -- does, feel that way. And, you know, if that becomes a political issue, in that context within a campaign, um, obviously there's a period of time between the election and, and the end of the year where individuals can make decisions, such as a governor can."

Craig Silverman.
Craig Silverman.

The second key moment is located just prior to the end of the conversation, beginning at 41:19. Replying to a CNN crew member who asks for additional specifics about the case, Hickenlooper says, "Well, you don't want to go into too much detail in these cases. But, you know, the, the, issue that a political campaign would make a human life, into, you know, a political football, is unacceptable. Right? And it's not... and a) I, I think it would backfire tremendously on any candidate that did that. And if they did do that, and if somehow they won, there are obviously remedies that the governor can do, you know, I could give it a full clemency between election day and the end of the year, I could...there are a number of different opportunities to make sure that doesn't happen. Again, keeping in mind it should not be a political football."

Here's the clip:

Silverman -- who was portrayed as "the liberal one" when he co-hosted a KHOW program with conservative Dan Caplis -- aired this material on Saturday morning during his current KNUS radio show. He also chatted with 18th Judicial District DA George Brauchler; whose office prosecuted Dunlap and he's currently seeking the death penalty against Aurora theater shooter James Holmes. No surprise that Brauchler ripped Hickenlooper for implying he could grant clemency to Dunlap should he lose to Beauprez, who's said he would sign the execution order.

Among Brauchler's comments: "What he's not telling Colorado, but he's telling CNN, is 'Don't worry, I've already granted clemency,' because either I'm going to get re-elected and he's not going to die or I'm going to lose and he's not going to die,"

Here's an embed of Brauchler's appearance on the Silverman show.

A Hickenlooper spokesman says his comments to CNN shouldn't be interpreted as a change in his approach to this issue. But conservative blogs such as Colorado Peak Politics have hammered him on the issue, suggesting that the death penalty issue may have a lot of life left in it after all.

Continue to see previous posts about Nathan Dunlap and the death penalty, including arguments against execution and responses from pro-death-penalty officials.

 

"Nathan Dunlap clemency backers cite broad support as calls for death continue"

Published 9:49 a.m. May 17, 2013

The campaign to either save Nathan Dunlap from the death penalty or execute the man convicted of four brutal murders at a Chuck E. Cheese restaurant in 1993 has turned into something of a public-relations competition. As the Arapahoe District Attorney's Office continues to dole out statements from victims and associates who believe he deserves the ultimate punishment, Dunlap's advocates are working to humanize him even as they emphasize broad support for Governor John Hickenlooper to alter his sentence to life in prison without the possibility of parole.

On December 14, 1993, as we've reported, Dunlap entered the restaurant, from which he'd previously been fired, and shot five employees: Margaret Kohlberg, fifty, Sylvia Crowell, nineteen, Ben Grant and Colleen O'Conner, both seventeen, and Bobby Stephens, twenty. Only Stephens survived, and he was very seriously wounded.

Dunlap was captured within hours and convicted in 1996, at which point the jury opted for execution. He's been on death row ever since, and earlier this month, a week was scheduled for the completion of the sentence: August 18-24.

Now, the only thing that will prevent the carrying out of this action is a grant of clemency from Hickenlooper -- and shortly after the date-setting, Dunlap backers and death-penalty foes combined forces to formally ask that the governor do so.

In the weeks since then, the office of Arapahoe County DA George Brauchler has been steadily releasing statements arguing the opposite point. Those represented thus far include a Chuck E. Cheese worker who was supposed to have worked that evening but took the night off to babysit and the mother of Ben Grant, who begs Hickenlooper to "sit back, make no decision, allow the one that twelve people made after listening to all the evidence seventeen years ago stand.

Ben Grant.
Ben Grant.

"I wish you could have met my son, listened to all of the things said about him after this act of planned murder, the amount of love that flowed," she added. "I honestly think if (you) had been there, you would have no doubt the decision for death."

The latest person to weigh in? An unnamed juror who hasn't changed his or her mind about the verdict.

"I have lived with this for a long time," the death-penalty-backing juror's statement begins. "My feelings are if one person [Hickenlooper] has the ability to change what a juror declares, then why do we need a jury? The only reason why anybody should be able to overturn what a jury's verdict declares is because of fraud, cheating or some other injustice. As for those three jurors who all of a sudden changed there minds, I doubt it."

Actually, there's plenty of evidence showing that three of those on Dunlap's jury have a new viewpoint on the matter. The trio signed affidavits saying that had they known Dunlap suffered from serious and undiagnosed mental illness at the time of the killings (he only started receiving Lithium treatments in 2006), they wouldn't have voted for death. See one of the affidavits below, along with other documents supporting clemency -- not just a reply to DA Brauchler's arguments in favor of execution, but a letter from the Colorado Criminal Defense Bar and a narrative of Dunlap's abuse-filled upbringing featuring photos like this....

John Hickenlooper: Would He Commute Nathan Dunlap's Death Penalty If He Loses?

...and this:

John Hickenlooper: Would He Commute Nathan Dunlap's Death Penalty If He Loses?

Madeline Cohen, an assistant federal public defender working on Dunlap's behalf, stresses that such material only scratches the surface of the support for clemency.

Continue for more about the clemency bid for Nathan Dunlap, including photos and documents.

 

"We have more than two dozen letters representing literally hundreds of people," Cohen notes. "There are retired judges who talk about it from their perspectives, including judges who've presided over death-penalty cases and have seen the strain they put on the system from a human and legal perspective. There are former prosecutors, who talk about how ineffective the death penalty is, and many, many faith leaders, who speak from all different faith perspectives about why we shouldn't carry out an execution.

Dunlap as a young teen.
Dunlap as a young teen.

"We also have mental health professionals who focus on Nathan's mental illness as a reason not to execute him, and 75 different academics from six different universities in Colorado: CU-Boulder, CU-Denver, CSU, Northern Colorado, DU and Regis. There's also the Colorado Criminal Defense Bar, the ACLU -- so many different voices that say it is wrong to execute Nathan Dunlap."

Cohen stresses that "none of these people minimize his crime. Every single one of us -- including his lawyers and Nathan himself -- all of his supporters absolutely acknowledge that he committed a terrible crime and he will continue to be punished for it. He will spend the rest of his life in prison no matter what, and he's never getting out. The question is, does the state kill him or does he live out the rest of his days before he dies a natural death in prison."

The latter may sound like Dunlap is getting off easily in comparison with execution, but Cohen disputes that interpretation.

"The conditions Nathan lives in are extreme," she says. "He's in a cell by himself that's the size of two king-size mattresses, and he gets one hour a day to exercise in a room that's about the same size as his cell. It's got a pull-up bar and the only fresh air and sunshine he gets is through a grate over the room."

Dunlap in high school.
Dunlap in high school.

In addition, "he's escorted everywhere with five-point restraints, and he never gets to touch anyone, other than getting to shake hands with his lawyers through a small pass-through in the visiting glass. And he's not open for visits from non-lawyers. It is not a cushy existence, it's not hanging out in the yard playing poker and living the good life."

When asked about the steady stream of execution calls coming from Brauchler's office, Cohen defers, saying, "I don't really feel comfortable speaking to that. I think they feel strongly that's the position they want to take and they're pursuing it in a way they feel is appropriate. I don't want to get into a pissing contest."

There is one thing to which she takes exception, though.

Continue for more about Nathan Dunlap's clemency bid, including another photo and documents.

 

DA Brauchler's "message has been, 'Governor, if you grant clemency,you're overruling the judge and the jury.' That's not an accurate reflection of what clemency means under the law, and I think it's a distortion of the governor's role that should be debunked.

A recent photo of Nathan Dunlap.
A recent photo of Nathan Dunlap.

"The governor has, since the beginning of the State of Colorado, had the power to commute and pardon. That power was also given to the President by the Founding Fathers, and I believe every state in the country has some form of pardon and commutation power. That power exists so that the executive can look at a case and a person in a more holistic sense. They're not bound by the rules of evidence and not limited to time the way we were in 1996, when nobody had investigated Nathan Dunlap's mental illness. They didn't have twenty years of his behavior in prison to see he's not dangerous to anyone. And they didn't have the historical information about the death penalty or the enormous amount of evidence that shows it has been meted out in a racial fashion."

As examples, she says, "Colorado has a 100 percent black death row, and people who kill whites, like Nathan Dunlap, are more than four times more likely to get a death sentence than they are if they kill blacks. The governor can take all this information into account and decide what's the right thing to do as a matter of policy, justice and humanity. That's his role, and it's written into the Colorado Constitution."

As for the statements of those directly affected by the crime who want Dunlap put to death, Cohen emphasizes that "I don't want to take away from the victims' and family members' right to feel everything they are feeling. That's not my place and I would not tell them how to feel. They've been through a terrible tragedy and we recognize that.

"Everyone needs closure, and my hope is that the end of this case, even if the end is a life sentence rather than an execution, will bring closure to everyone involved."

Look below to see the reply to DA Brauchler's clemency-petition response, the affidavit of one juror who no longer thinks death is the appropriate penalty, a letter from the Colorado Criminal Defense Bar and a narrative about Dunlap's upbringing, abuse and mental-health issues.

Reply in Support of Clemency Petition

Affidavit of Juror C

Colorado Criminal Defense Bar Letter

Nathan Dunlap Photos and Narrative by Michael_Lee_Roberts

Continue for a post published after John Hickenlooper's reprieve announcement featuring responses from pro-death-penalty officials.

 

"Here's why attorney general, Jeffco DA think Hick should have let Nathan Dunlap die"

Published 9:50 a.m. May 24, 2013

Governor John Hickenlooper's decision to grant a temporary reprieve to Nathan Dunlap, who killed four people and seriously wounded a fifth in an attack on a Chuck E. Cheese restaurant circa 1993, has been cheered in some quarters, but jeered in others. Tom Tancredo decided to run for governor due in part to frustration over Hick's actions, and both Colorado Attorney General John Suthers and Jefferson County District Attorney Pete Weir have released passionate attacks on his choice.

First up, here's what Suthers has to say on the subject:

John Suthers.
John Suthers.
"It's been my observation over many years that the extraordinary powers we give the president and our state governors is the one place in the criminal justice system where personal philosophy can trump the rule of law. And make no mistake about it -- that is exactly what has happened in the case of People v. Nathan Dunlap. This is a horrible crime in which four wholly-innocent people were brutally murdered. The defendant was eligible for the death penalty under Colorado law. The district attorney believed the defendant deserved the death penalty. A jury of twelve citizens of Colorado determined that he deserved the death penalty. And a plethora of appellate courts have upheld the jury's decision. But Governor Hickenlooper simply cannot cope with the task of carrying out the execution of Nathan Dunlap or exercising his constitutional mandate.
Ben Grant was among Dunlap's victims in the 1993 Chuck E. Cheese massacre.
Ben Grant was among Dunlap's victims in the 1993 Chuck E. Cheese massacre.

"Executive authority to modify criminal punishment is part of our constitutional system, and I respect that. However, the citizens of Colorado deserve honesty and the victims deserve finality. I believe the governor's decision does not stem from anything but his personal discomfort about the death penalty. I also believe that the governor should have been much more up front with the voters when he ran for office if he couldn't carry out the death penalty.

"I have an excellent working relationship with the governor and I respect him very much. Yet it's been apparent to me that issues of crime and punishment are not his strength. John Hickenlooper is an optimist. He has proven to be uncomfortable confronting the perpetrators of evil in our society. I saw this when I discussed last year's juvenile direct-file bill with him. He had trouble comprehending that a 16 or 17-year-old is capable of brutal acts deserves adult punishment. I saw it in his naïve views about the role of administrative segregation in our prisons. And I've heard it in my discussions with him about the death penalty. The governor is certainly entitled to these views, but granting a reprieve simply means that his successor will have to make the tough choice that he cannot.

"Fifty-year-old Margaret Kohlberg, 19-year-old Sylvia Crowell, 17-year-old Ben Grant, and 17-year-old Colleen O'Connor all died at Nathan Dunlap's hand. Bobby Stevens was shot and left for dead. They were the victims in this case and Mr. Dunlap made sure that their voices could not be heard.

"The governor, by refusing to make any hard decisions today -- whether in carrying out Dunlap's sentence or conclusively granting clemency -- has only guaranteed suffering and delayed justice for the victims' loved ones for years to come."

Tough stuff -- and Jeffco DA Weir's response is no more complimentary toward Hickenlooper.

Continue for Pete Weir's statement about the reprieve granted to Nathan Dunlap.

 

Here's Jefferson County District Attorney Pete Weir's statement:

"Earlier this week, Governor Hickenlooper granted a reprieve to Nathan Dunlap. In 1993, Dunlap walked into a Chuck E. Cheese restaurant in Aurora and shot five people in cold blood. Dunlap killed three teenagers and a mother of two.

"Despite being afforded due process through years of litigation at taxpayer expense, the Governor granted Dunlap a stay of execution mere weeks before his scheduled execution. The Governor is entitled to commute a sentence to remedy an injustice, but a reprieve in this case is simply a complete failure to make a decision. Rather than provide any finality, the Governor's Executive Order explains that people will, 'respect and understand the unique burden of this decision.' It is, however, the exact same decision made by the many people involved in this case since 1993 -- prosecutors, jurors, and judges have all wrestled with the same issues before they rendered a decision. In fact, seventeen years of reviews by numerous courts and judges confirmed, beyond any doubt, that Dunlap received a fair trial. Additionally, the death penalty was imposed by the unanimous decision of 12 members of the community who were able to make a decision, after hearing all of the facts and Dunlap's mitigation, in concluding that death was the only appropriate penalty.

"The commutation process is not intended for the Governor to simply impose his own personal beliefs. A reprieve or commutation is intended to allow for the correction of grievous injustices, a failure of due process, or some question regarding the defendant's guilt. None of those factors apply to Dunlap. The Governor has, in effect, temporarily repealed the death penalty for just one person. In so doing, Governor Hickenlooper has also created needless and significant uncertainty in other cases where the death penalty remains a factor. His decision has contributed significantly to the ongoing trauma to the victims' family members. I am struck by their profound reactions to the Governor's failure to make to a decision.

"The reprieve ignores the horrific nature of the murders committed by Mr. Dunlap, the jury's verdicts, the due process afforded to Dunlap, the role of the Legislature, and the consequences for everyone involved except, perhaps, for Mr. Dunlap -- who deserved exactly what the jury decided many, many years ago."

Send your story tips to the author, Michael Roberts.


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