Juvie-Lifer Resentencing: Beth McCann Prevails Over George Brauchler

A recent booking photo of Curtis Brooks.
A recent booking photo of Curtis Brooks. Colorado Department of Corrections
Editor's note: On December 14, Governor John Hickenlooper commuted the life sentence of Curtis Brooks and five other individuals convicted of first-degree murder as teens or young men. Continue for our previous coverage.

District attorneys from different jurisdictions don't usually take each other on in court. But that's what happened in regard to Denver DA Beth McCann and 18th Judicial District DA George Brauchler, whose face-off involved a disagreement over life-without-the-possibility-of-parole sentencing of juvenile offenders.

The Colorado Supreme Court has now sided with McCann. The Supremes found that McCann's expansive strategy toward LWOP resentencing, which Mitch Morrissey, her predecessor as Denver DA, called "illegal" in this space, doesn't actually run afoul of the law.

The controversy revolves around Curtis Brooks, who became a prison rehabilitation role model after being convicted of felony murder for a homicide in 1995, when he was fifteen.

Eleven years later, in 2006, the Colorado General Assembly nixed the state's life-without-parole rule as it pertained to juveniles, changing the sentences to life with the possibility of parole after forty calendar years — a decision that affected 48 people by Brauchler's calculations and fifty by McCann's. Then, in 2016, the state legislature went a step further, creating a new sentencing range of thirty to fifty years with ten years of mandatory parole for juveniles convicted of committing felony murder between 1990 and 2006.

Because Brooks's conviction fell within that range, he was eligible for resentencing — and this past May, Brauchler, in whose jurisdiction the crime was committed, told us he felt Brooks deserved to have his sentence shortened and had encouraged Governor John Hickenlooper to consider the matter.

But Brauchler still had problems with the felony murder law, since he felt it applied to a "closed class" — sixteen of the 48-50 people the 2006 legislation covered who had felony murder convictions.

"That makes it 'special legislation,' and there's a prohibition against it in our state constitution," Brauchler argued. "So when Curtis Brooks was about to be resentenced, we filed a motion with the court to say, 'Hey, we think this is unconstitutional,' and guess what: The judge, Judge Samour [that's Carlos Samour, who oversaw the trial of the Aurora theater shooter], agreed with us. Last year, he ruled it was unconstitutional. But then, the day before Brooks was about to be resentenced to life with parole eligibility at forty years, the judge issues another order that says, 'I changed my mind. I do think it's constitutional, and we're going to move forward with sentencing on the thirty-to-fifty-year window.'"

Denver District Attorney Beth McCann. - FACEBOOK
Denver District Attorney Beth McCann.
This was objectionable to Brauchler "in two ways," he went on. "First, we hadn't prepped the victim for the thirty-to-fifty-year sentencing. And this wasn't my only case like this one. Of the three other cases of mine that are potentially eligible for this, one of them is a guy named Alexander Pogosyan, who participated in the shotgun murders of five people — and the idea of that guy being eligible for parole after thirty to fifty years, well, I just couldn't do that. And if the best, smartest judge I've ever been in front of, Judge Samour, can go back and forth on this, I want the Colorado Supreme Court to tell us what the answer is."

In response, Denver DA McCann filed an amicus brief in the case — it's also linked below — in which she maintained that the law is constitutional. At first, Brauchler said, he was puzzled by this move: "I've never heard of a district attorney weighing in against another DA's position on a case that's before the state supreme court, especially involving a case that didn't take place in Beth's jurisdiction." But then he noticed a section of the brief in which McCann stated that "the class is not closed" and posited that "if the statute is interpreted as it should be, the class of sixteen can be expanded."

Here's the brief's example of how that's possible:
For acts committed as a juvenile between 1990 and 2006, Offender A was charged as an adult and convicted of murder on two theories: (1) murder after deliberation; and (2) felony murder. The trial court entered judgment of conviction, either on a generic count of murder (supported by both theories), or a single count of murder after deliberation. The court then sentenced A to life without parole.

Years later, Offender A filed a post-conviction motion, claiming (among other things) that his murder conviction was obtained in violation of the United States Constitution. For any number of plausible reasons, Offender A’s claims had greater force against the after-deliberation count than they did against the felony-murder count. Consequently, when Offender A prevailed (either through litigation or by agreement of the parties), the trial court amended the judgment to reflect a conviction for felony murder.
Under this scenario, Offender A's murder-after-deliberation conviction essentially goes away and is replaced by felony murder — and he would therefore be eligible for resentencing under the thirty-to-fifty-year standard. And the concept wasn't theoretical. McCann had already used it at least four times, in ways that ex-DA Morrissey found objectionable.

Not so the Colorado Supreme Court. The jurists write that they "are not persuaded" by Brauchler's "special legislation" thesis and endorse McCann's approach to expanding the aforementioned class of sixteen.

Why? The following three reasons, in which Brauchler is referred to as "the People:"
First, as set forth above, we perceive nothing in section [the statute] that requires the conviction or sentencing to have occurred on or after July 1, 1990 and before July 1, 2006, as the People appear to presume.

Second, to the extent that the People’s argument hinges on the statute’s reference to a person "who received a sentence to life imprisonment without the possibility of parole," the juvenile in our hypothetical post-conviction challenge satisfies this criterion and therefore qualifies for possible determinate sentencing under the statute.

Lastly, for the reasons set forth above, the People’s interpretation would leave trial courts with no constitutional options for sentencing in the above-described post-conviction scenario. We do not believe that the legislature would have intended such a result, nor are we willing to countenance this result in the circumstances presented here.
18th Judicial District DA George Brauchler. - FACEBOOK
18th Judicial District DA George Brauchler.
Rather than boasting about McCann's victory, her office simply announced it in a release headlined "Colorado Supreme Court Upholds Juvenile Resentencing Law."

For his part, Brauchler, the Republican nominee for Colorado Attorney General, frames the verdict as needed clarification.

"I am thankful the Supreme Court agreed to accept review in this case and for their willingness to expedite the hearing and ruling on this important matter," he notes in a statement. "The justices only accept a small number of these applications, and they obviously did so here because they agreed it was an important matter for them to clarify on an expedited basis."

He adds: "I also want to thank Governor John Hickenlooper for agreeing to hold off on a decision on Mr. Brooks’ clemency request, so the Colorado Supreme Court could decide this very important issue, which will now have statewide applicability.... We raised this issue because we had doubts about the validity of this law. The Supreme Court has now spoken: We know what the law is, and we accept that the ruling is now the law of our state. It is important that we now see that Mr. Brooks is back in court as soon as possible for re-sentencing under the 2016 legislation."

By the way, the difference between life with the possibility of parole after forty calendar years (the previous punishment) and a thirty-to-fifty-year sentencing range may not seem like a big change. But even half-century jolts typically correspond to fewer years served than the four decades mandated in 2006, since they take into account so-called "good time" — rewards for trouble-free conduct that commonly reduce sentences by a third. Using this math, fifty years in stir would become 33.5 years, and thirty years could be shortened to twenty.

As a result, Curtis Brooks's resentencing is likely to end with him being a free man.

Click to read the Colorado Supreme Court's decision in People v. Brooks and DA McCann's amended amicus brief.
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Michael Roberts has written for Westword since October 1990, serving stints as music editor and media columnist. He currently covers everything from breaking news and politics to sports and stories that defy categorization.
Contact: Michael Roberts