The Last Writes

Gary Davis was ready to die in 1990.
Mark Thomas had just come to town as the director of the Colorado Press Association when he got a call from the Colorado Department of Corrections. Davis, convicted in 1987 of the brutal rape and murder of Virginia May, was suspending any further appeal of his death sentence. And so the state was gearing up for its first execution since 1967, when Luis Monge was strapped into the gas chamber. And it was gearing up fast.

This was December 1990, and the execution was set for the week of January 5, 1991. The DOC had set aside five seats for witnesses from the media, who would serve as pool reporters for the rest of the state's broadcast and print outlets. The Colorado Broadcasters Association would choose one representative each from radio and television. It fell to Thomas, as CPA director, to pick three newspaper representatives--anyone would do, he was told, besides "that reporter at the News." DOC director Frank Gunter didn't like what he'd been writing.

"That bothered me," Thomas now remembers, although he doesn't recall the unwanted reporter's name. "I was offended that they would rule somebody out."

So he got on the phone with Jay Ambrose, then the editor of the Rocky Mountain News, and asked Ambrose how he felt about the News being excluded from the execution witness list. "He said it was no big deal," Thomas recalls. "Essentially, it was a 'throw the Post a bone' sort of attitude."

This was December 1990, after all, and a lot of people didn't think the Post was going to be around much longer. The News had the bigger circulation and the stronger reputation, and the Post, which Dean Singleton had purchased three years earlier, was limping along. The bone was thrown to Post columnist Kevin Simpson, who immediately started using his column to gnaw over the weighty matter of watching a man die.

Fast forward to spring 1997. Not only is the Post still around, but its circulation has surpassed--far surpassed--that of the News, which has pulled back its distribution to focus on the Front Range. Gary Davis is still around, too--but not for long.

Soon after he suspended the appeals process, Davis changed his mind. The execution was off, and Davis was back on the long legal road of challenges. But that road reached a dead end this spring, when the U.S. Supreme Court refused to hear his appeal. Once again, the DOC started singing the executioner's song. Who could guess it would inspire a game of musical chairs?

In May the DOC sent a letter to the media, advising that there might be an execution in the fall of 1997, "the first capital punishment carried out in thirty years. It is expected that this occurrence will attract tremendous news coverage." The advisory included the list of media witnesses chosen back in 1990: the Post, KUSA-TV, KOA, the Associated Press and the Canon City Daily Record, the hometown paper for the state prison.

The list was the same, but the media organizations themselves are not. Ambrose is gone from the News, replaced by editor Bob Burdick. The Post has a different editor, Dennis Britton, and a different publisher, Ryan McKibben. But Kevin Simpson is still in residence, and he was soon back chewing on that bone again.

The broadcast outlets have changed, too, enough so that rumblings about the seven-year-old selection process soon reached Colorado Broadcasters Association director Doug Wayland--that's right, he wasn't there seven years ago, either--who consulted the bylaws and called a meeting. The sixteen-member CBA board agreed that the initial picks should be tossed and conducted a new lottery with interested outlets that met the qualifications. Radio stations, for example, had to have a significant news operation--which pretty much narrowed the field to a Jacor property. In the drawing, KOA retained its seat--but KUSA's Paula Woodward lost hers, replaced by Channel 2 and Ernest Gurule (whose brother, oddly enough, was an inmate in Canon City during the last execution). "Channel 9 was incredibly dignified about it all," Wayland says. (The fact that Channel 2 was picked, rather than hot competitors Channel 4 or Channel 7, probably helped soothe the hurt.) "It was extraordinary the way they conducted themselves."

Over at the Colorado Press Association, the scene was getting rather extraordinary, too. After receiving a call from the News, CPA director Ed Otte--yep, he's new to the job since 1990--started trying to untangle ancient history. "It was a surprise to find out the CPA had any involvement," he says. Not that it was easy to track down exactly what that involvement entailed, or why the News had been excluded. By the end of July, the CPA board realized "nobody had anything on file," Otte says; Thomas, now the director of the Oklahoma Press Association, filled in some blanks. That was enough to prompt boardmembers to write a two-page letter to Ari Zavaras, the current director of the DOC. The board met twice with Zavaras, looking for solutions. The easiest, of course, would simply have been to find the News an extra seat--but that was out of the question: State statutes limit witnesses to fifteen, and certain slots are reserved for officials and relatives of the victim. "When it became apparent we just couldn't resolve this thing, Zavaras asked the CPA to poll member dailies," Otte said. Most of them were for opening up the selection process.

Guess which paper wasn't? In fact, the Post was so peeved at the thought of losing its seat that it threatened to pull out of the organization. "The CPA was caught in the middle of two big papers," Otte says, as diplomatically as he can. "The board tried to correct what needed to be corrected."

So on September 10, the CPA threw everything back at Zavaras. Two days later he announced that the AP and the Daily Record would keep their seats and that he would hold a drawing between the Post, the News and the Colorado Springs Gazette, the state's only other daily with a circulation over 100,000, on September 16.

Late on the afternoon of September 15, the Post took its case to court. In its request for an injunction to stop the drawing, it called Zavaras's decision "arbitrary and capricious, and in violation of the Denver Post's constitutional and property rights to continue to be the large market newspaper witness." The Post's lawyers included Don Bain, former candidate for Denver mayor, and Manuel Martinez, who, as Denver's manager of safety seven years ago, supervised Zavaras when he was the city's chief of police.

Augmented by editors from the News and Post, the group met again in Denver District Court last Thursday to argue whether a newspaper's opportunity to watch a man die constituted a valid "property right."

Judge Frederick Alvarez concluded that it did and upheld the Post's position. "The Denver Post has been advising its readers that its reporter, Kevin Simpson, will witness the execution of Gary Lee Davis," Alvarez ruled. "The Denver Post argues that it will lose credibility if [Zavaras] will vacate its selection and thus convert the Denver Post's representation into an inaccuracy. The court concurs." As for Thomas's claims of impropriety concerning the DOC's insistence that the News be excluded, the judge was "dubious."

"The DOC got me to do their dirty work," responds Thomas, who stands by his story. "I feel terrible about how it's turned out. It's torn apart the membership."

Like Channel 9, the News now says it will surrender and accept the current lineup.

And so when, sometime in the next three weeks, Gary Davis is led into the death chamber and given a lethal injection, Kevin Simpson will be in one of the seats, watching.

"In retrospect," Simpson wrote back in 1991, "it seems a morbid and macabre lottery, a solemn blind draw that selected me to witness a murder."

Usually the vultures wait until a body is dead before they tear it apart.


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