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.
"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....
...and this: 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.
"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."
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.
"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.
More from our Follow That Story archive: "Nathan Dunlap: Mom of victim Ben Grant latest to call for killer to die."
