Josiah Sher: Death for accused hit man, or just very expensive trial?
News that Eighteenth Judicial District Attorney Carol Chambers is seeking the death penalty for Josiah Sher, the alleged trigger man in a double-murder-for-hire case in Castle Rock, doesn't exactly come as a shocker. The slayings of Amara Wells and Bob Rafferty were about as coldblooded as they come, and Chambers has been just about the only DA in the past decade to earnestly pursue capital cases in Colorado -- which hasn't executed anyone since Gary Davis took the needle way back in 1997.
But when prosecutors start talking about making killers pay the ultimate price, taxpayers should be prepared to face a little sticker shock themselves. Colorado juries have been notoriously reluctant to vote for execution -- and even when they do, the appeals process tends to be costly and seemingly interminable. That's why budget-minded district attorneys in this state just don't pursue death with the zeal of their predecessors and why the practice seems to be in decline across most of the country.
District Attorney Chambers has no such qualms. Of the three prisoners currently on Colorado's sparse death row, two were put there by her office: Robert Ray and Sir Mario Owens, convicted in the 2005 murders of Javad Marshall-Fields (a witness in another homicide case) and his fiance, Vivian Wolfe. But both cases were difficult, complex prosecutions, and the appeals process promises to be protracted and messy, with defense attorneys raising a raft of claims about undisclosed prosecution "deals" with witnesses, including the DA's decision to provide a car and auto insurance to one witness who needed to relocate.
Chambers has blamed the high cost of death penalty cases on the scorched-earth tactics of the defense bar. But her DP team has been dogged by accusations concerning undisclosed evidence and other alleged ethical violations. Disputes over prosecutors' conduct certainly hiked the cost and ultimately thwarted her efforts to obtain the death penalty for David Bueno and Alejandro Perez, inmates accused of killing another prisoner at the Limon Correctional Facility.
After a six-year debacle of prosecutorial missteps, Perez was acquitted last year. This was after a Lincoln County judge removed Chambers's team from the Perez case, citing alleged ethical violations; the Colorado Supreme Court reinstated them, but the death penalty was no longer part of it. Meanwhile, Bueno's jury returned a guilty verdict but refused to impose death -- and then District Judge Douglas Tallman vacated that conviction, blasting the prosecution for "withholding relevant and possibly exculpatory evidence."
Chambers is now appealing that decision. She financed her efforts, to a great extent, by billing the Colorado Department of Corrections for her office's costs, under a state statute that allows DAs to recover the costs of prosecuting inmates for crimes commited inside state prisons. According to figures compiled by Coloradans for Alternatives to the Death Penalty, the prosecution costs in the two cases to date exceed $650,000. Add the cost of defense counsel, the attorney general's office, court costs, and so on, and the figure tops $4 million.
A recent working document prepared by the legislature's Joint Budget Committee views the whole matter dolefully: "The Bueno and Perez prosecutions have clearly not gone well; these thus far unsuccessful prosecutorial efforts, paid for with state funds, will at most yield one conviction, perhaps none, and at times have made [Chambers's] office appear inept."
The DA is also involved in the long-running effort to execute Edward Montour Jr., a Limon inmate who killed corrections officer Eric Autobee in 2002. At his 2003 trial, Montour represented himself; his death sentence was later thrown out, but not the guilty verdict. Another sentencing hearing is expected later this year and is expected to last at least two months, at an approximate cost of $324,000.
In short, it costs a lot of money to kill somebody in this state. And even with a determined prosecutor and a heinous crime at issue, few of the candidates ever make it to that gurney in a little room in Canon City. In fact, just one has done it in the past 44 years -- and Gary Davis had to practically volunteer for the job.