"He was, in my opinion, a volunteer," former state chief deputy public defender Sharlene Reynolds testified this morning. "He wanted to be killed by the state."
The question of whether Montour was mentally competent to represent himself is the latest hurdle in prosecutors' decade-long effort to execute him -- and a critical test of new Eighteenth Judicial District Attorney George Brauchler's pledge to pursue the death penalty, seldom used in Colorado, in cases of particularly heinous crimes.
Montour was already serving a life sentence for killing his eleven-week-old daughter when he abruptly attacked 23-year-old correctional officer Eric Autobee in the kitchen of the Limon Correctional Facility, striking him twice with a heavy ladle. It was the first inmate killing of an officer in the Colorado Department of Corrections in 73 years. Montour pleaded guilty to first-degree murder, but the Colorado Supreme Court threw out his death sentence in 2007 because it hadn't been imposed by a jury. Prosecutors have been seeking to get the death penalty reinstated in his case ever since.As reported here a few weeks ago, the drawn-out legal wrangle has alienated Autobee's parents, who say they no longer support the death penalty. Montour attorney David Lane has said his client would drop all appeals and agree to "stay in a little supermax cell for the rest of his life" if the state would take the death penalty off the table; when that didn't happen, Lane's team filed a motion to withdraw the guilty plea.
This week's two-day hearing is the defense's chance to present evidence that Montour had ineffective assistance of counsel and wasn't competent to proceed as his own attorney back in 2003. Reynolds, the first witness called, testified that Montour was suspicious of her and other lawyers trying to defend him and exhibited paranoid behavior when she met with him, expressing a belief that various people were plotting against him inside the DOC.
Montour, she added, had a history of mental-health issues and had been diagnosed as having a bipolar condition with psychotic features well before his attack on Autobee. He had stopped taking some powerful anti-psychotic drugs, lithium and Haldol, a few weeks before the attack.
"I was very concerned that Mr. Montour was taken off some very serious medication for psychosis," Reynolds said. "He might have been competent to stand trial, but he wasn't competent to represent himself."
Reynolds described her client as having a flat affect and showing signs of being delusional and despondent. Yet the public defenders didn't arrange for a psychiatrist to examine Montour to determine if he was competent to stand trial, and he soon fired his attorneys and was allowed to proceed pro se.
"It was my habit and routine, with mentally ill clients, to bring in a treating psychiatrist from the get-go," Reynolds said. "I don't know why it wasn't done in this situation. It should have been done."
Veteran prosecutor John Topolnicki sparred with Reynolds over whether Montour may have been faking mental illness, suggesting that the inmate "did a good job for himself" acting in his own defense and had a constitutional right to plead guilty, even if it meant the death penalty. But Lane contended that Montour had been doing everything he could to hide his mental condition a decade ago because he wanted to die.
"If Mr. Montour's goal was to commit court-assisted suicide, mental illness could be an impediment to that goal, couldn't it?" he asked.
Reynolds agreed: "I believe he was doing everything he could to sabotage his case.... He wanted to throw himself at the state and have the state kill him."
The hearing is expected to conclude Friday, after the prosecution presents its case for keeping the guilty plea -- and reinstating the death penalty.
More from our Prison Life archive: "Bob Autobee 'drops out' of death penalty battle for son's killer, Edward Montour."
