The process of sentencing someone to death and carrying out that sentence in Colorado is controlled by state statutes and court opinions interpreting those statutes, and should also be informed by constitutional principles, including the right to due process of law and the right to be free from cruel and unusual punishment.
The trial and penalty phase
Colorado law divides murder into several categories. Only first degree murders can be punished by the death penalty. However, first degree murder encompasses a wide range of murders, and prosecuting authorities have vast discretion in choosing which killers should face the death penalty. A prosecutor who intends to seek a death sentence for a murder in his or her county must file a notice no later than 60 days after a defendant has pleaded not guilty or not guilty by reason of insanity to a first degree murder charge.
Once a notice of intent to seek the death penalty is filed, the chief justice of the Colorado Supreme Court selects two additional judges to serve with the trial judge at the sentencing hearing, or penalty phase. First, however, a trial on the defendant's guilt or innocence of first degree murder occurs before the trial judge and a jury, in most cases. If the jury finds the defendant guilty as charged, sentencing is scheduled before the three-judge panel. It normally will be held within 60 days of the guilty verdict.
Before the hearing, the defense and the prosecution are required to exchange information about the witnesses and evidence that will be presented in the penalty phase. The prosecution must specify the aggravating factors it intends to prove at the sentencing hearing, and the defense must turn over to the State a broad range of information, which is not required to be disclosed in noncapital cases.
At the sentencing hearing a four-step analysis is used. The judges must consider: (1) whether at least one of 14 aggravating factors has been proved to exist beyond a reasonable doubt; (2) whether any mitigating factors exist; (3) whether mitigating factors outweigh aggravating factors; and (4) whether death is the appropriate sentence. A death sentence cannot be imposed unless the judges unanimously decide that mitigating factors do not outweigh aggravating factors and that death is appropriate under all of the circumstances.
If the three judges believe that death is not appropriate, or do not unanimously agree on a death sentence, the defendant is sentenced to life in prison without parole.
The "old" state appeals process
If the murder occurred before January 1, 1998, then an appeal is filed in the Colorado Supreme Court within 45 days of sentencing. This appeal is called the direct appeal, and for the most part it addresses legal issues which can be raised based on the record and transcript of the hearings, trial and penalty phase. The defense files an opening brief containing arguments for reversal of the conviction and sentence. An answer brief is filed by the attorney general's office, and the defense may then file a reply brief in response. The supreme court hears oral argument from the lawyers on each side of the case and later issues a written decision.
If the state supreme court does not reverse the conviction and sentence, the appellate lawyer has 90 days to file a petition for writ of certiorari to ask the U.S. Supreme Court to take the case. That court has absolute discretion in deciding whether to take a specific case, and turns down a great many more cases than it takes.
Once the U.S. Supreme Court has declined to grant certiorari, the case then goes back to the state district court which imposed the sentence. This stage of the process is called state postconviction or state habeas corpus.
In state postconviction, matters which did not occur on the record, in front of a court reporter, must be investigated. This is the chance to present new evidence to show that the defendant's conviction and death sentence were unfair and that a new trial and penalty phase are required. The defendant is represented by new lawyers, who must explore, for example, whether his or her trial attorneys provided ineffective assistance of counsel. If the district court refuses to grant a new trial or penalty phase, an appeal is again taken to the Colorado Supreme Court. This appeal is called the postconviction appeal, and briefs are filed and oral arguments presented as in a direct appeal.
The "new" state appeals process
At the urging of prosecutors and the attorney general's office, the Colorado legislature has established a new "unitary review" process for death penalty cases in which the murder was committed on or after January 1, 1998. The new procedures are designed to speed up a condemned prisoner's appeals in state court.
Within five days of being sentenced to death, the defendant is to be brought before the court. At that time, the defendant will be asked whether he or she wants to pursue postconviction review, including any issues of ineffective assistance of counsel. If so, new counsel is appointed and directed to file a motion for postconviction relief within 150 days. If an evidentiary hearing is held on any postconviction claims, it must occur within 60 days after the motion is filed. The district court must then issue its decision within 30 days.
The appeal from the denial of postconviction relief is combined with the direct appeal, and strict time limits are imposed for filing briefs. All appellate and postconviction issues are to be resolved by the state supreme court at the same time. Experienced defense lawyers who have reviewed this new process believe it will make full and fair review of death sentences very difficult to obtain in state court.
In the next Issue: Federal appeals
Coloradans Against the Death Penalty Newsletter -- Fall 1999
See the Web site's News section for more articles and information about the death penalty.
