D-181 ( ) SUBMISSION OF MURDER STUDY REPORT

Transcription

1 DISTRICT COURT, DOUGLAS COUNTY, COLORADO 4000 Justice Way Castle Rock, CO THE STATE OF COLORADO vs. EDWARD MONTOUR, JR. Defendant. Defense Attorneys: DAVID A. LANE, #16422 KILMER, LANE & NEWMAN, LLP 1543 Champa Street, Ste 400 Denver, Colorado Phone ; Fax KATHRYN J. STIMSON # Champa Street, Suite 400 Denver, CO Telephone: (720) Fax: (303) HOLLIS A. WHITSON, #32911 SAMLER AND WHITSON, PC 1127 Auraria Parkway, Ste 201B, Denver, CO Phone COURT USE ONLY Case Number: 02CR782 (Douglas County) Lincoln County Case Number 02 CR 95 Division: 3 Courtroom 3 Richard B. Caschette District Court Judge Div. 3 Douglas County Justice Center 4000 Justice Way Ste 2009 Castle Rock CO Phone: Fax: D-181 ( ) SUBMISSION OF MURDER STUDY REPORT Edward Montour, Jr., by and through counsel, submits the Preliminary Murder Study Report in support of D-181. FURTHER, Mr. Montour states: 1. This preliminary report is being submitted because of the deadline set by this Court. Research is still underway, and some final analysis may still take place, as indicated in the report. If additional data or analysis is done before the hearing on this matter, Mr. Montour will of course supplement or amend this submission. 1

2 2. Mr. Montour explicitly does not waive any ofthe arguments or objections that have been expressed in court or in prior pleadings regarding the Murder Study data. 3. At present, the study experts are scattered allover the country and soon, will be scattered around the globe. Thus, the expert team has submitted this pdf report to me, which contains e-signatures until they can gather original and copied signatures. As soon as those have been provided to counsel, counsel will file said document with the court. WHEREFORE, counsel submit the Murder Study Report. DAV A~ LANE KATHRYN J. STIMSON HOLLIS WHITSON CERTIFICATE OF MAILING: I certify that a true, accurate and complete copy of the foregoing was ed to the following on July 11, 2012: richard.caschette(t12judicial.state.co.us; amanda.\lenenga@judicial.state.co.us; anlv.johnsol1@judicial.state.co.us; jtopolnicki@da18.state.co.us; djones(ii{da18.state.co.us; daniel.edward.s@state.co.us; Inatthew.durkin(Q2state.co.us;jad kinscm(la18.state.co.us; ebillgham@d.ai8.state.co.us ~Rv6t:: ' 2

3 Joint Declaration and Report of Justin Marceau, Wanda Foglia and Sam Kamin 1. The undersigned individuals have designed and carried out a study of Colorado murders for the time period January 1, 1999 through December 31, The purpose of the study is to evaluate the effectiveness of Colorado s aggravating factors in narrowing the class of death eligible defendants. The expert team was comprised of Wanda Foglia, Sam Kamin, and Justin Marceau. Our credentials, the study methodology, and our findings are summarized below. 1 Study Personnel 2. Professor Justin Marceau is the chair of the expert review team. He is a tenured law professor at the University of Denver, Sturm College of Law. He has been on the law faculty since Prior to joining the tenure track faculty at the Sturm College of Law, Mr. Marceau specialized in capital habeas corpus appeals as an Assistant Federal Public Defender (District of Arizona). He regularly teaches and researches criminal law, criminal procedure, habeas corpus, the death penalty, and federal jurisdiction more generally. His scholarly works have been cited by other leading scholars and treatises, he is regularly invited to present his work to scholarly and practitioner audiences including a conference organized by state court judges this year and his work has been cited by several federal courts. Professor Marceau is also the author of a textbook on Federal Habeas corpus and he has agreed to publish an Advanced Criminal Procedure textbook. 3. Professor Wanda Foglia is a tenured, full professor in the Law and Justice Studies Department at Rowan University. She received her J.D. and Ph.D. in Criminology from the University of Pennsylvania. Before joining the faculty at Rowan University in 1994, Dr. Foglia practiced law, including a position as an Assistant District Attorney in the Philadelphia District Attorney s Office. She previously taught criminal procedure and criminology courses at the Montgomery County Police Academy and currently teaches undergraduate and graduate courses in criminology and law at Rowan University. She has published on deterrence and cognition and crime and, since becoming the Principal Investigator for the Pennsylvania portion of the Capital Jury Project in 1996, her publications have been primarily focused on the death penalty. As a result of her death penalty research, Dr. Foglia has been asked to testify before the New Jersey Death Penalty Study Commission, to prepare a report for a Pennsylvania Supreme Court Sub- 1 This report is produced in response to a deadline set by the District Court in the case of People v. Montour. As elaborated below, the study is substantially, but not entirely, complete. We will complete the study once field research is complete. We are comfortable submitting this report now because, from a statistical standpoint, the review of the final few dozen cases is unlikely to impact our conclusions. We will make any necessary adjustments to our statistics once the study is complete. However, based on the volume of cases reviewed to date, we are confident that any such adjustments will not materially affect our statistical results and will not alter our conclusions about the constitutionality of Colorado s Death Penalty Statute. 1

4 Committee on Discrimination in Sentencing, to present at academic and professional conferences, to review jury research for the National Institute of Justice and several articles and books on the death penalty, to comment on New Jersey s repeal of the death penalty on public television, and to appear as an expert witness in 24 capital cases in 14 states. 4. Professor Sam Kamin is Director of the Constitutional Rights and Remedies Program at the University of Denver, Sturm College of Law. Holding a J.D. and Ph.D. from the University of California and a B.A. in Physics from Amherst College, Professor Kamin has taught at the Sturm College of Law since He writes and teaches in the areas of Criminal Law and Procedure, Death Penalty Jurisprudence, and Federal Courts. His articles have appeared in the Virginia Law Review, the Journal of Constitutional Law, the Indiana Law Journal, the Boston College Law Review, and Law and Contemporary Problems, among many others. He is the principal author of Investigatory Criminal Procedure: A Contemporary Approach, a casebook published by Thomson/West and has other casebooks currently in progress. Background 5. We are providing this declaration in order to summarize an empirical study that we conducted of murder cases in Colorado. The purpose of this study was: (1) to determine the degree to which the aggravating factors listed in Colorado Revised Statute (5) limit the number of murder defendants who can be sentenced to death (the aggravating factor rate); (2) to determine the percentage of first degree murder convictions that were prosecuted as death penalty cases (the death prosecution rate); and (3) to determine the rate at which sentences of death were imposed in the cases for which the prosecution sought death (the death sentence rate). Our study, then, is designed to determine the Colorado aggravating factor rate, the Colorado death prosecution rate, and the Colorado death sentence rate. 6. Our study and the conclusions we draw regarding Colorado s capital sentencing scheme are grounded in the Supreme Court s Eighth Amendment capital sentencing jurisprudence, which recognizes that a State s capital sentencing scheme must genuinely narrow the class of death eligible defendants. In Zant v. Stephens, 462 U.S. 862 (1983), for example, the Court elaborated on the requirement that, post-furman v. Georgia, a capital sentencing scheme must produce meaningful standards for avoiding arbitrary sentencing. Specifically, in order to avoid an Eighth Amendment violation, the State s aggravating circumstance[s] must genuinely narrow the class of persons eligible for the death penalty and must reasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder. Id. at The Supreme Court has emphasized that if the death penalty scheme is appropriately narrowed, then it becomes reasonable to expect that juries-even given discretion not to impose the death penalty-will impose the death penalty in a substantial portion of the cases so defined. Penry v. Lynaugh, 492 U.S. 302, 327 (1989) (noting that if death is not imposed in a substantial portion 2

5 of the cases where there is death eligibility, then the problems of wanton and freakish application of the death penalty are not cured). 7. Our study is based on the understanding that Colorado s aggravating factors are designed to perform the requisite narrowing required by the Eighth Amendment. No other feature of Colorado s capital sentencing scheme materially and non-arbitrarily imposes legislative limits on the death eligibility of a defendant guilty of first degree murder. People v. Dunlap, 975 P.2d 723, 735 (Colo. 1999) (recognizing that in both weighing and non-weighing jurisdictions the constitutionally mandated first step for death eligibility is the conviction of the defendant of murder and the finding of one aggravating circumstance (or its equivalent) at either the guilt or penalty phase ); id. ( the finding of at least one aggravating circumstance, or aggravating factor under our statutory terminology, is an essential constitutional component of [the] death penalty ); see also People v. Harlan, 8 P.3d 448, 483 (Colo. 2000), overruled on other grounds ( a death sentence imposed on the basis of a statutory aggravating factor that fails to narrow the class of persons eligible for the death penalty... violates the constitutional ban on cruel and unusual punishment ) Our conclusions regarding the constitutionality of the Colorado capital sentencing system are also informed by the fact that in Furman v. Georgia, 408 U.S. 238 (1972), the Supreme Court held to be unconstitutionally arbitrary death penalty schemes where only approximately 15-20% of those eligible for death were actually sentenced to death. 408 U.S. at 309 n. 10 (Stewart, J., concurring); id. at 386 (Burger, C.J., dissenting). See also id., at 436 n. 19 (Powell, J., dissenting). That is to say, a death sentence rate of 15-20% has previously been recognized as irreconcilable with the Eighth Amendment. 3 2 Colorado has a broad definition of first degree murder such that the distinction between first and second degree murder does not sufficiently narrow the class of death eligible defendants. Unlike states that reserve first degree murder for a small class of offenders, Colorado Revised Statute includes, not just murder after deliberation, but felony murder, and murder by extreme indifference. Indeed, under Colorado law a felony murder is necessarily a first degree murder conviction because there is no second degree felony murder. First degree murder in Colorado, then, includes not just premeditated killings, but also killings that are the product of gross recklessness or even negligence. Consequently, even more than other states, the role of Colorado s aggravating factors is critical. 3 See Steven F. Shatz, The Eighth Amendment, the Death Penalty, and Ordinary Robbery-Burglary Murderers: A California Case Study, 59 FLA. L. REV. 719, (2007) ( When the Court decided in Furman that the death penalty, as then administered by the states, created too great a risk of arbitrariness, it was the Justices' understanding that only 15-20% of death-eligible murderers were sentenced to death. ); id (noting that it was the fact that fewer than one in five statutorily death-eligible defendants were being sentenced to death... that caused the Justices in Furman to find that the death penalty was exacted with great infrequency... and consequently, was inescapably arbitrary. ); Steven F. Shatz & Nina Rivkind, The California Death Penalty Scheme: Requiem for Furman?, 72 N.Y.U. L. REV. 1283, 1288 (1997) ( In Furman, the Justices' conclusion that the death penalty was imposed only infrequently derived from their understanding that only 15-20% of convicted murderers who were death-eligible were being sentenced to death. ). 3

6 Study Methodology and Findings 9. The study examined every murder case in Colorado, as identified by the Colorado State Judicial Branch, from January 1, 1999 through December 31, It did not involve a sampling of cases, but rather investigated the entire universe of murder cases in the State s judicial records. 10. This universe of murder cases for the relevant study period, by county and case number, was obtained by defense counsel based on a request to the Colorado State Judiciary. Specifically, on June 24, 2011, Jessica Zender, a policy analyst for the Colorado Judicial Branch, Division of Planning and Analysis ed to counsel the list of murder cases filed between January 1, 1999, and December 31, The total number of murder cases identified by Ms. Zender for the relevant period of time was 1, In order to acquire data regarding each of the 1,350 cases identified by the State Judiciary, defense counsel hired a number of paralegals, law students, and lawyers to serve as a Data Collection Team ( DCT ). 13. The DCT assisted our expert review and study in a number of ways. Most importantly, the DCT conducted case research in every county in order to provide us with information about each of the 1,350 cases identified by the state judicial branch. The DCT has also eliminated cases from the study based on the defendant s ineligibility for the death penalty using straightforward criteria provided to them by us. Specifically, the DCT was asked to eliminate cases from the study based on four criteria: (a) There is no deceased victim, cf. Kennedy v. Louisiana, 554 U.S. 407 (2008); (b) the defendant was a juvenile at the time of the offense, cf. Roper v. Simmons, 543 U.S. 551 (2005); (c) a jury has acquitted the defendant of first-degree murder this is known as the controlling fact-finder rule ( CFF ); 5 or (d) the defendant has been convicted of a 4 To be more precise, the State judicial list includes 1,344 cases. However, this set of cases excluded six cases that have been provided to us by counsel for Montour. Five of the cases that the State judicial list excluded were cases from the Eighteenth Judicial District for which the prosecution filed a death notice. It appears that the record keeping method in the Eighteenth Judicial District is such that the State Judiciary s search of all murder cases did not yield the death noticed cases from that district. The sixth excluded case was from Rio Grande County, and was excluded by the State Judiciary s disclosure apparently because it resulted in a conviction for child abuse resulting in death, not murder. Mr. Montour s counsel have filed a document with the Court certifying that all known cases in which the death penalty was sought during the relevant period of time have been included in the study. It is also worth pointing out that the 1,350 total cases includes 22 cases in which the prosecution pursued a death penalty prosecution, at least prior to sentencing. 5 Under the CFF rule, a jury finding of guilt as to first degree murder is treated as controlling, and likewise a jury acquittal of first-degree murder is treated as controlling. Similarly, a jury verdict finding the defendant not guilty of a lesser crime, such as second degree murder, is also treated as a controlling fact finding. 4

7 crime less serious than a second degree felony. This last category includes convictions for second degree murder-heat of passion, conspiracy to commit second degree murder, manslaughter, negligent homicide, and other crimes of violence that are a third-degree felony or less. 6 We excluded three additional cases on unique legal grounds: (1) an international extradition agreement to not seek the death penalty, (2) a cold case that occurred prior to Gregg v. Georgia, and (3) a double entry in the State Judicial list. 14. The total number of DCT-excluded cases based on these criteria is 662. Of the 662 cases excluded by the DCT, 5 were cases in which the prosecution had initially pursued a death prosecution; in each of the 5 cases the defendant was acquitted, either directly or impliedly, of first degree murder, thus, excluding the case from the study under the CFF rule. 15. After the DCT had excluded 662 cases from the initial 1,350 total cases obtained from the State Judicial Branch, there remained 688 cases for expert review. Of the 688 cases, 17 were cases in which the prosecution had, at least pretrial, pursued a death sentence. 16. For each of these 688 remaining cases, the DCT was tasked with compiling as much information as possible about each of the murders. The DCT gathered case dockets, charging information, appellate court decisions, police reports and affidavits contained in the district court file, and media accounts. Based on the DCT s research, a case file was constructed that included all of the information that the DCT could gather regarding each of the 688 murders during the relevant time period. 17. The expert team reviewed each of the case files created by the DCT for the cases included in the study. The expert review of the case files focused on three basic questions: (1) whether there was sufficient information in the file to make the relevant determinations; (2) whether the case was either factually or procedurally a first-degree murder; and (3) if so, whether one or more of the statutorily enumerated aggravating factors was present. 18. If the expert team concluded that there was insufficient information in the case file, the case was sent back to the DCT for additional research. If, after additional research, there was still insufficient information, the case was excluded from the study. Presently, there are 50 cases for which there is insufficient information. Of these 50, the experts conclusively determined that there was insufficient information in 18 cases. Another 32 cases are still being researched by members of the DCT. 6 Notably, conspiracy to commit first degree murder is a second degree felony. Accordingly, if the defendant was convicted of conspiracy to commit first-degree murder, and there was a deceased victim, the case remained in the study. Only cases in which it was an third degree felony or lower, or where there was no deceased victim were excluded. A defendant convicted of conspiracy to commit first degree murder could be guilty of first-degree murder as a complicitor under Colorado law. 5

8 19. Because there was insufficient information to review 50 of the 688 murder cases that were part of the study, 638 total cases remained for expert review analysis. Of these 638, there were 17 cases in which the prosecution sought or obtained a sentence of death. 7 Because our research objective was to identify cases in which, under the statute, the prosecutor could have sought death, for purposes of our initial review of the data for this report, we did not review the death noticed cases. For present purposes, we defer to the prosecution s assertion that one or more aggravating factors was present in each of these death-noticed cases. Consequently, 621 total cases (638 17) were reviewed and coded by the experts for purposes of this study. 20. For the 621 cases that were included in the study and for which there was sufficient information in the case file, the expert team assessed how many of these cases were procedurally or factually first-degree murder cases. Specifically, in assessing whether a case was a first degree murder for purposes of the study, we considered whether: (a) the defendant was actually convicted of first-degree murder (procedural M1); or (b) the facts in the case file provided by the DCT were legally sufficient to support a first-degree murder charge (factual M1). 21. The standard we used in evaluating whether a case was a factual first degree murder was a legal sufficiency standard. Under this standard, the question is not what the expert believes is the correct factual determination in a given case, nor how a reasonable jury should resolve the issue. Rather, the question is whether a Colorado appellate court would affirm a first-degree murder conviction in the case if one were returned by a jury. That is, we reviewed the facts in the case file, giving particular weight to available appellate court opinions, and determined whether a jury verdict of guilty of first-degree murder would be supported by the facts when viewed in the light most favorable to the prosecution. Cf. Jackson v. Virginia, 443 U.S. 307, 319 (1979) (holding that the evidence is sufficient to support a conviction whenever, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. ); see also People v. Bennett, 183 Colo. 125, 132 (1973) ( The same test for measuring the sufficiency of evidence [applies] whether the evidence is direct or circumstantial. ). The exact language of the standard agreed upon by the expert team is: Whether, based on all of the information contained in the file -- the arrest warrant affidavit, the statement of the defendant, the facts as stated in an appellate opinion, etc. -- there exists sufficient evidence to support on appeal a jury verdict of M1 and/or an aggravating factor? That is, our ultimate inquiry is: could a jury hearing this 7 The prosecution actually sought death in 22 cases during the relevant period of time. However, five of these death prosecutions resulted in acquittals on the first-degree murder charge, supra paragraph 14. Accordingly, five of the initial 662 cases excluded by the DCT ( = 688 cases for expert review) were cases in which the prosecution had originally sought the death penalty, but the defendant was either convicted at trial of a lesser offense, see People v. Jimenez (Teller County, 2000CR178); People v. Wilkinson, (Adams County 2000CR638); People v. Sweeney (Adams County, 2000CR634); People v. (Manuel) Melina (Adams County 2000CR1675), or acquitted altogether, People v. Perez (Lincoln County 2005CR74). These cases were eliminated under the CFF Rule described in footnote 5. Accordingly, the total number of death noticed cases included in the study was 17. See infra note 11 (explaining that two of the death noticed cases were legally excluded from the study leaving the total number of death-noticed prosecutions for which a sentence of death was possible at 15). 6

9 evidence -- read in the light most favorable to the prosecution -- reasonably conclude that M1 and/or an aggravating factor was proven beyond a reasonable doubt? 22. Based on the approach set forth above, the expert team coded each of the 621 cases as either first degree murder or not first degree murder. First, we identified those cases for which there was a procedural i.e., actual first degree murder conviction. For those cases where there was not a first degree murder conviction, and for which the jury did not explicitly reject first degree murder, we made a determination of whether the facts were sufficient to satisfy the legal sufficiency standard that is, whether they were factually first degree murder. The DCT compiled our conclusions. 23. Of the cases studied, there were 535 cases that were either factually or procedurally first degree murder. There were 86 cases that we concluded were not factually or procedurally first degree murder cases. 24. Of the 535 cases that were coded as either factually or procedurally first degree murder cases, we determined that an additional 6 cases had to be excluded from our aggravating factor study on the basis of Eighth Amendment proportionality principles. 8 Specifically, we concluded that 6 of the 535 first degree murder cases had to be excluded based on the defendant s insufficient participation in the killing. Enmund v. Florida, 458 U.S. 782 (1982); Tison v. Arizona, 481 U.S. 137 (1987). As with cases excluded by the DCT because the defendant was a juvenile, these cases were excluded from the study on the basis of the defendant s ineligibility for the death penalty. 9 Thus, of the entire universe of cases for which there was sufficient information, we determined that there were 529 (535-6 = 529) first degree murder cases that were not legally disqualified from death eligibility. 25. For each of the 529 factual or procedural first degree murder cases, we assessed whether one or more aggravating factors existed. That is to say, for every case defined as a factual or procedural first degree murder for which there was not an Enmund/Tison exclusion, we evaluated whether a statutory aggravating factor applied under the legal sufficiency standard set forth above. Again, a sufficiency of the evidence standard, based on Jackson, was used to determine whether, based on the facts in the case file, a reasonable jury could have found an 8 In the course of finalizing this study we expect that we will find additional cases that should be excluded based on Eighth Amendment proportionality principles. The numbers presented in this report represent our best effort based on the time constraints imposed by the pending litigation. There will likely be minor adjustments to all of the figures in this report as we review and finalize our data analysis. 9 It is also important to note that we did not apply a theory of vicarious aggravator liability. We assessed each defendant s individual culpability for the aggravating factors based on the statutory language. However, certain Colorado aggravating factors, based on existing case law and statutory text, do apply to a defendant even if he was not the killer. 7

10 aggravating factor beyond a reasonable doubt. 10 As with the first degree murder analysis, we did not code the cases based on what we believed was the correct factual determination, or how we believed the jury should have resolved the issue. Instead, the question was whether the facts were legally sufficient to support a jury finding of one or more aggravating factors that is, would a Colorado appellate court affirm a finding of an aggravating factor if the factor were found by a jury. Moreover, we did not assess every possible aggravating factor for each case file; instead, our research question was whether one or more aggravating factors are supported by the evidence in the case file. 26. Based on our review of the 529 first degree murder cases, we found one or more aggravating factors in 485 of the cases. In other words, we found that only 44 of the procedural and factual first degree murder cases reviewed did not satisfy a legal sufficiency standard as to one or more aggravating factors. 27. Colorado s aggravating factor rate the percentage of factual or procedural first degree murder cases in which there was at least one aggravating factor was calculated using the 485 cases in which we found one or more aggravating factors, the 15 cases 11 in which the prosecution actually sought (and was legally permitted to seek) the death penalty during the period of this study, and the 529 total first degree (non-death-noticed) cases. Specifically, we added the total number of first degree murder cases for which we found one or more aggravating factors and the number of Colorado death noticed cases ( = 500), and divided this figure by the total number of first degree, Enmund/Tison-eligible murder cases including death noticed cases ( = 544). Based on these numbers we concluded that Colorado s aggravating factor rate was 91.9% (500/544). In 91.9% of the factual or procedural first degree murder cases during the twelve-year period studied, at least one aggravating factor was present. 28. We also evaluated the Colorado death prosecution rate for the relevant period of time. We evaluated the prosecution rate both pre-trial (initial decision to formally seek death), and at trial. To calculate the pretrial death prosecution rate, we divided the number of cases in which 10 This approach has been suggested by the Supreme Court. See Godfrey v. Georgia, 446 U.S. 420, (1980) (suggesting that the breadth of an aggravator may be assessed by considering whether a person of ordinary sensibility would find the aggravator applicable to a particular factual situation); Maynard v. Cartwright, 486 U.S. 356, 364 (1988) (considering the breadth of an aggravator by assessing the circumstances in which an ordinary person could honestly believe that the aggravator applied). 11 As previously noted, supra note 7, the prosecution actually sought death in 22 cases during the relevant period of time. However, five of these death prosecutions resulted in acquittals on the first-degree murder charge and are, thus, not part of the study based on the CFF rule. Moreover, two of the prosecution s 22 death notice prosecutions were legally barred: (1) People v. Vasquez (Adams County 2002CR2231) (based on Atkins v. Virginia, 536 U.S. 304 (2002)); and (2) People v. Hagos, 110 P.3d 1290 (Colo. 2005)(Denver County 1999CR2738)(based on retroactivity principles arising out of statutory changes stemming from Ring v. Arizona, 536 U.S. 584 (2002)). Accordingly, we treated the total number of death prosecutions as 15 that is, there were 15 cases where the prosecution noticed death and was not legally barred from pursuing a death sentence at trial. 8

11 the prosecution formally sought the death penalty by the number of cases in which they could have sought the death penalty. Excluding death prosecution cases that resulted in acquittals, of which there were 5, 12 and death prosecutions that were legally barred, 13 the State sought death, pretrial, in 15 cases, and, under the statute, it could have sought death in 500 cases. 14 Consequently, the pretrial death prosecution rate was 15/500, or 3.0%. To calculate the trial death prosecution rate, we looked at only those cases in which the prosecution continued to pursue a sentence of death at the conclusion of the guilt-phase of the case, and compared the number of those cases to the number of cases in which an aggravating factor was present. Of the 15 death sentences pursued by the prosecution pretrial, there were only 5 cases in which the death penalty was still being sought at the time of the sentencing phase trial. 15 Accordingly, the trial death prosecution rate was 5/500, or 1.0%. 29. We also evaluated the Colorado death sentence rate. To calculate the death sentence rate we compared the actual number of death sentences during this period to the number of factual or procedural first degree murders in which there was at least one aggravating factor present. That is to say, we compared the number of cases in which the prosecution could have sought death, based on the presence of one or more aggravating factors, with the number of cases in which the prosecution obtained a sentence of death. Specifically, although there were 500 cases 16 in which at least one aggravating factor was present and the prosecution could have sought a sentence of death, a sentence of death was returned in only 3 cases. Accordingly, Colorado has a death sentence rate of 3 out of 500, or 0.6% See supra note Supra note The denominator, 500, is based upon 485 factual or procedural first degree murder cases in which at least one aggravating factor was present, plus the 15 death prosecutions. See supra paragraph 27; supra note 11 (calculating 15 as the total number of death noticed cases). 15 To determine that only 5 cases were still death cases at the time of the sentencing trial we eliminated the following cases from the 22 cases in which the prosecution originally sought death: (a) 5 acquittals on the first degree murder charge (see supra note 7); (b) 2 cases in which the death penalty was legally barred (see supra note 11), (c) 2 cases in which the prosecution dropped the death penalty prosecution; and (d) 8 cases that resulted in a guilty plea to first degree murder or to a lesser offense and in which no capital sentencing proceeding was held and no death sentence was imposed. 16 Supra note Even this figure overstates the death sentence rate for two reasons. First, of these three death sentences handed down during the relevant time period, none of them are final. Most notably, in order to be conservative, we have counted the 2003 death sentence for Edward Montour, Jr. as one of the three successful death prosecutions during the study period even though it was reversed by the Colorado Supreme Court. People v. Montour, 157 P.3d 489 (Colo. 2007). As of July 2012, Montour is pending a resentencing hearing. Second, the only other two death sentences, which arise out of the same double homicide, are not yet final as the state court review process has not yet concluded. 9

12 Conclusion 30. A capital sentencing system that renders the death penalty potentially applicable to such a high percentage of first degree murders violates the Eighth Amendment. This is particularly true where, as here, the actual rate of death sentences is so low. 18 "When the punishment of death is inflicted in a trivial number of the cases in which it is legally available, the conclusion is virtually inescapable that it is being inflicted arbitrarily." Furman v. Georgia, 408 U.S. 238, 293 (1972) (Brennan, J., concurring). In his dissent in Furman, Justice Powell summarized the available statistics regarding the rate at which persons who were convicted of capital murder were actually sentenced to death. 19 Notably, in Furman, the Justices struck down the capital sentencing systems as wanton and unacceptably arbitrary where approximately 15-20% of those eligible were actually sentenced to death. 20 Given the results of our study as summarized above, Colorado s capital sentencing system cannot be reconciled with the strictures of the Eighth Amendment. 31. Because of Colorado s capacious definition of first degree murder, and in light of the expansive list of 17 aggravating factors, a high percentage of defendants face the threat of a death sentence. Of the cases in which a defendant could be convicted of first degree murder, a death sentence could be sought 91.9% of the time. That is to say, prosecutors have nearly unchecked statutory discretion to seek a death sentence in first degree murder cases under Colorado law. The 91.9% aggravating factor rate for first degree murders in Colorado between January 1, 1999 and December 31, 2010, indicates that Colorado s statutory system fails to genuinely narrow the class of death eligible offenders as required by the Eighth Amendment to the U.S. Constitution. Furman, 408 U.S. at 435 n. 19 (Powell, J., dissenting) (discussing the percentage of cases in which death was a statutorily permissible punishment ). 18 Supra paragraph Furman v. Georgia, 408 U.S. 238, 436, n. 19 (1972) (Powell, J., dissenting) ( No fully reliable statistics are available on the nationwide ratio of death sentences to cases in which death was a statutorily permissible punishment. At oral argument, counsel for petitioner in No estimated that the ratio is 12 or 13 to one. Tr. of Oral Arg. in Furman v. Georgia, No , p. 11. Others have found a higher correlation. See McGee, Capital Punishment as Seen by a Correctional Administrator, 28 Fed. Prob., No. 2, pp. 11, 12 (1964) (one out of every five, or 20%, of persons convicted of murder received the death penalty in California); Bedau, Death Sentences in New Jersey , 19 Rutgers L. Rev. 1 (1964) (between 1916 and 1955, 157 out of 652 persons charged with murder received the death sentence in New Jersey-about 20%; between 1956 and 1960, 13 out of 61 received the death sentence-also about 20%); H. Kalven & H. Ziesel, The American Jury (1966) (21 of 111 murder cases resulted in death sentences during three representative years during the mid-1950's); see also Koeninger, Capital Punishment in Texas, , 15 Crime & Delin. 132 (1969) ). 20 See, e.g., supra note 3. 10

13 32. The statutory scheme in place in Colorado fails to carefully limit prosecutorial, judge, and jury discretion in seeking and imposing sentences of death and therefore does not mitigate the risk of arbitrariness in the death penalty. This is a result of the large number and breadth of the aggravating factors under Colorado law This study allows us to document the extent to which Colorado s capital sentencing statute fails to genuinely narrow the class of death eligible offenders. Under the Colorado capital sentencing system, many defendants are eligible, but almost none are actually sentenced to death. Because Colorado s aggravating factors so rarely result in actual death sentences, their use in any given case is a violation of the Eighth Amendment. Furman, 408 U.S. at 309 (Stewart, J., concurring) (describing capital sentencing systems in which fewer than one in five eligible defendants were sentenced to death as so arbitrary as to approximate being struck by lightning ). 34. We hereby affirm that we have read the foregoing declaration, and it is true and correct. Executed this 11th day of July, /s Justin Marceau Justin F. Marceau Associate Professor of Law University of Denver, Sturm College of Law 2255 E. Evans Ave., Denver, CO jmarceau@law.du.edu /s Sam Kamin Sam Kamin Professor of Law University of Denver, Sturm College of Law 2255 E. Evans Ave., Denver, CO skamin@law.du.edu /s Wanda Foglia Wanda D. Foglia Professor of Law and Justice Studies, Rowan University 201 Mullica Hill Road, Glassboro, NJ Foglia@rowan.edu 21 Colorado has seventeen separate statutory aggravating factors. C.R.S (5). Commentators surveying capital sentencing systems across the country have identified jurisdictions with the same number or fewer aggravators as exceptional. See, e.g., Jeffrey L. Kirchmeier, Aggravating and Mitigating Factors: The Paradox of Today's Arbitrary and Mandatory Capital Punishment Scheme, 6 WM. & MARY BILL RTS. J. 345, 349 (1998) (describing some states that have a large number of aggravating factors and listing some examples: Arizona has ten, South Carolina has eleven, Nevada has twelve, Illinois has fifteen, and Pennsylvania has seventeen aggravating circumstances. ). 11