Criminal justice in Colorado is under fire, as outrage over the police-related deaths of De'Von Bailey and Elijah McClain demonstrates. But the post-arrest process is equally flawed, with the mentally ill and developmentally disabled often facing discriminatory practices as well — and prison-reform advocates concerned about the latter could not find a better example of a person trapped in a system gone awry than Luke Pelham.
Why? Pelham has been incarcerated since he was eighteen for a Boulder killing that he didn’t commit. And as a result of several frustrating legal developments, he’s going to remain behind bars for years to come, even though he suffers from a chromosomal condition linked to learning disabilities that prevents him from truly comprehending his fate.
“He’s never going to understand why he was charged with murder when he wasn’t even in the room when it happened,” says Terri Cloonan-Pelham, Luke’s mother. “He believes he got thirty years for lying to the police.”
Pelham isn’t the only one puzzled by the three-decade jolt — the shortest time he could be given in light of his guilty plea for second-degree murder, first-degree assault on an at-risk individual and aggravated robbery. Lisa Polansky is also baffled.
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Late last year, the Boulder-based attorney scored a long-sought commutation from Governor Jared Polis for her client Erik Jensen, who had originally been sentenced to life without the possibility of parole for failing to intervene at age seventeen when his friend Nate Ybanez murdered his mother in 1998. Polansky recently explored a new trial request for Pelham that was withdrawn out of fear that such an effort could actually make things worse for him. “In my opinion, the plea was invalid, as the client was and still is incompetent and does not belong in prison,” Polansky says.
The risks for Pelham and others incarcerated with him have only increased in recent months, as the COVID-19 pandemic has led to outbreaks in several detention centers across Colorado. Thus far, the Pueblo facility where Pelham is locked up has avoided an outbreak of its own, but Cloonan-Pelham acknowledges being “absolutely terrified” at the prospect — so much so that she collaborated with retired National Public Radio anchor and host Eric Wellman to produce a two-part podcast on COVID-19 in the prison system.
Dubbed The Out of Sight Club, the program is being promoted on social media using an illustration created by a former Colorado Department of Corrections inmate in which a banner bearing the words “COVID AWARE” is threaded through a pair of handcuffs. “While none of this protects Luke from getting sick or rights the wrongs done to him, I felt the need to do something,” Cloonan-Pelham explains. “The problem with the justice-system reform movement is that the people who care do not seem to matter, and the people that matter do not care. My wish is to make just one person who matters become one person who cares.”
As outlined in a 2017 Westword cover story, Luke Pelham was implicated in the 2014 homicide of Aaron Tuneberg, a developmentally disabled thirty-year-old. But the actual attack 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: Colorado law allows a suspect to be charged with felony murder if an individual is slain during other felonies, and as a result, Pelham faced the prospect of a life-without-the-possibility-of-parole sentence if he’d participated even tangentially in a robbery or burglary, both of which qualify under the statute. When Pelham was found competent to stand trial despite his Klinefelter diagnosis, this threat prompted the guilty plea, which at least gave him a chance at release, albeit after a very long stretch behind bars.
From early on, Cloonan-Pelham says, the team working on Pelham’s behalf understood that “we could file a 35c” — a motion challenging his conviction and sentence. But she was reluctant to do so, in part because Stan Garnett, the Boulder district attorney during the time of Pelham’s prosecution, was still in office and had shown no interest in acknowledging his condition.
Then, in January 2018, Garnett announced that he would be resigning from his post and returning to private practice, and Governor Jared Polis chose as his successor Michael Dougherty, who “seemed to be all about progressive reform,” Cloonan-Pelham says. So later that year, the family went forward with a 35c, citing problems with Pelham’s original, court-appointed attorney.
During subsequent conversations with the DA’s office, however, Cloonan-Pelham’s hopes for a better outcome for her son quickly disappeared. Dougherty “sat back from the table and said, ‘I wasn’t there. I don’t know much about the case. I’ll let my officers handle it,’” she recalls. “And because they weren’t going to negotiate the case, it became very risky, because the plea would have been voided. Luke would have been back in county jail, with the DA’s office deciding what to charge. And after they made it clear they weren’t going to change the charges, the question became, ‘Are they going to offer a plea?’ That became a very serious situation, where it looked like Luke might get life without the possibility of parole” — a much worse scenario than his current one, in which he’s parole-eligible in 2035 and is likely to get out earlier because of good behavior.
And so Polansky withdrew the 35c petition earlier this year. In response to questions about this turn of events, DA Dougherty offers the following: “When a defendant is convicted of a serious violent offense, the filing of an appeal and 35c motion is fairly standard. Absent exceptional circumstances, our office works hard to ensure that the conviction and sentence is upheld. In 2014, this defendant traumatized the victim’s family and our community. In 2015, the defendant pled guilty and accepted responsibility for his role in this tragic offense. The victim’s family continues to mourn the loss of Aaron. Although we were very confident in the outcome of this motion, 35c litigation is always a difficult process for a victim’s family. That is especially true in cases where a defendant entered a guilty plea and the victim’s family had reason to believe that there would be some closure of the criminal process — only to have the case revived by the defendant several years later.”
Dougherty adds: “We are relieved for them that the defendant made the decision to withdraw his motion. We were not provided an explanation as to why he withdrew the latest motion. It is our hope that his decision to withdraw the motion was simply consistent with why he pled guilty in the first place: his acceptance of responsibility for his role in the murder.”
The truth is far more complex, but Cloonan-Pelham breaks it down into simpler terms: “Luke is not the monster that the prosecutor wants people to believe.”
For Pelham, the first years of his sentence have been difficult. While he hasn’t been the victim of physical violence by fellow inmates, he’s been taken advantage of in myriad ways, his mother says, and he’s witnessed more than his share of trauma, including what she describes as “a completed suicide.” Nonetheless, he’s persevered.
“Luke has never had a write-up or any kind of disciplinary action the entire time he has been in DOC,” Cloonan-Pelham says. “He has been a porter — a trustee — and people in DOC have often commented what a great kid he is or what a sweetheart of a guy. One case manager said, ‘If more inmates were like Luke, I would not have a job.’”
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This reputation helped win Pelham a move to what’s known as the “incentive pod,” which is reserved for model inmates. Although he completed a GED thanks in part to help from some dedicated teachers within the Department of Corrections, he’s currently enrolled in a private correspondent high school and still hopes to earn a diploma despite his learning disabilities.
“Luke has found a love of reading, which he once hated because it was difficult for him,” Cloonan-Pelham says. “While he is still reading teen and young adult-level books, he reads all the time. He has also become an amazing artist, and his art has been displayed at every Chained Voices art show” — events put on by a Denver advocacy organization of the same name.
“Most of the time, he donates the money [from his artwork] to someone in need,” she continues. “Two years ago, he used that money to help buy an old motor home for a homeless couple that I had been helping. The other times, he buys books. He has also earned his way to the hobby room, where other older inmates who mentor Luke have taught him to crochet and paint using oil paints.”
Cloonan-Pelham has moved to Pueblo to be close to her son. “He still calls home two or three times every day, but right now, we can only do video visits,” she reveals, adding, “It has been a heartbreaking journey, but he has kept his head up and focused on the positive and the future, and is determined to not let this destroy him. He is an amazing kid.”