This week, Governor Jared Polis signed a new law intended to reform Colorado's controversial felony murder statute, which previously mandated that anyone participating in a crime causing death could be punished for the killing even if he or she didn't actually contribute to the taking of a life.
But this long-sought reform won't help Luke Pelham, who could still serve another decade and a half or more behind bars for a crime committed by someone else when he was in his teens — an injustice compounded by the fact that he suffers from a chromosomal condition linked to learning disabilities that prevents him from truly comprehending his fate.
No wonder Terri Cloonan-Pelham, Pelham's mother, has mixed feelings about the development.
"Let me first say that felony murder is the single-most heinous piece of legislation to exist on our books today," she maintains. "I do not believe that any reform is going to make this law fair or necessary. That having been said, any reform that takes the power away from the DAs and puts it back where it belongs, in the court, is a huge step in the right direction."
But then she adds, "As this new law is written, it does nothing to help Luke in an immediate sense."
Senate Bill 21-124, titled "Changes to Felony Murder," was sponsored by Senator Pete Lee and Representative Michael Weissman. Under previous Colorado law, its summary notes, "It is a class 1 felony as it pertains to first degree murder if a person commits or attempts to commit certain specified felonies and the death of a person, other than one of the participants, is caused by anyone during the crime."
The bill changed the law by:
• Moving the crime from first-degree murder to second-degree murder
• Requiring the death be caused by a participant
• Repealing certain elements of the affirmative defense
• Changing the penalty from a class 1 felony to a class 2 felony that is subject to "crime of violence" sentencing
Had the statute been in effect back in 2014, when Pelham was implicated in the Boulder homicide of Aaron Tuneberg, a developmentally disabled thirty-year-old, his journey through the legal system would have been very different.
As outlined in a 2017 Westword cover story, the actual attack on Tuneberg was committed by Austin Holford, a person Pelham barely knew. Pelham had agreed to accompany Holford to a local apartment complex and waited near a staircase on a lower-level landing with a golf club in hand while Holford beat Tuneberg to death with a baseball bat prior to stealing such items as an Xbox and a bicycle.
Why didn’t Pelham attempt to stop Holford once he heard the attack on Tuneberg? His defenders note that Pelham has Klinefelter syndrome and was born with an extra X chromosome. Individuals with Klinefelter tend to be both unassertive and meek, and Pelham certainly fits the profile. His mother believes that because “he’s very gullible,” he was easily manipulated by Holford, who has admitted that Pelham took no part in the actual slaying and was given a 56-year sentence in 2015.
Pelham called the cops about the assault, but the terrified teen wasn’t immediately forthcoming when speaking with officers, initially claiming that he didn’t know who’d killed Tuneberg. Boulder investigators, meanwhile, believed that Pelham had used the golf club to actively participate in the beating, even though neither blood nor any of Tuneberg’s DNA were found on the item.
Not that these details mattered in a legal sense: The law allowed a suspect to be charged with felony murder if an individual was slain during other felonies, and as a result, Pelham faced the prospect of a life-without-the-possibility-of-parole jolt if he’d participated even tangentially in a robbery or burglary, both of which qualified under the statute. When Pelham was found competent to stand trial despite his Klinefelter diagnosis, this threat prompted the guilty plea for second-degree murder, first-degree assault on an at-risk individual and aggravated robbery, which at least gave him a chance at release, albeit after a very long stretch behind bars. Pelham was given thirty years, the shortest time he could receive for the assorted offenses.
In the years that followed, Cloonan-Pelham and her legal team looked at the prospect of filing a motion challenging her son's conviction and sentence. But neither of Boulder's district attorneys during that span — Stan Garnett and current DA Michael Dougherty — struck them as sympathetic to Pelham's plight, and because the guilty plea could have been voided in the process, they feared failure could result in an even worse scenario. Pelham is currently parole-eligible in 2035, and is likely to get out sooner because of good behavior.
"Last year, we pulled felony murder cases going back nearly twenty years," Cloonan-Pelham explains. Of the more than 800 they examined, 156 went to trial. "Care to guess how many of those 156 lost?" she asks. "It is virtually impossible to win against this charge, and because of that, hundreds of people have been put in a position of having to plead guilty to crimes they did not commit to avoid death either by penalty or prison."
Incarceration itself can lead to tragedy during a pandemic. According to Cloonan-Pelham, her son got "pretty sick when he contracted COVID, and sick again from the vaccine — and sitting on the other end of a phone talking to him when he was so sick and knowing there was nothing that I could do really hurt. We have not been able to see each other since a year ago March because of COVID. We were recently given video visits, and we use those as often as the system will allow. But nothing will replace being able to hug my son."
Today, Pelham is in his mid-twenties and "still write-up free," she stresses. "Never been in trouble, never had a write-up, maintains his spot in the incentive units. To those that know him, this is not a surprise. He has completed as many classes as they would allow and he works in maintenance. He is on the waiting list for the dog program. He is helpful to staff and to those around him, and he has become a professional-level artist. His art is included in every Chained Voices art show, of which I am also a volunteer. None of that makes it okay for him to be there, of course, but he is making the best that he can out of a bad situation."
Cloonan-Pelham acknowledges that "it does make me very happy that never again will another kid like Luke end up like he did," and she expresses gratitude to the legislators who voted for the Lee-Weissman bill. "I hope no other mother ever has to feel this helpless and watch their child get railroaded under the guise of justice because of a horrible piece of legislation that does not lend importance to guilt or innocence, only prosecutor victory."
She wishes that the legislation had offered "some retroactive protection, but it didn't. Perhaps in another round."
Click to read the final draft of Senate Bill 21-124.
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