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The Colorado Supreme Court and Colorado Court of Appeals. (Jeremy Martinez, Special to The Colorado Sun)

Colorado lawmakers may soon repeal the death penalty in the state, so that makes this a good time to brush up on how the law actually works. Here’s a guide.

Not every murder case is eligible for the death penalty

Prosecutors in Colorado can seek a death sentence only in murder cases, but they must be especially heinous murder cases. That means they have to be not just first-degree murder cases — the most serious murder charge, often requiring prosecutors to prove it was committed with premeditation — but they must go even beyond that.

Colorado law lists 17 elements that can elevate a first-degree murder case to death-penalty eligibility. They are:

  • The defendant was already in prison for another high-level felony.
  • The defendant had previously been convicted of murder or another very serious felony.
  • The defendant intentionally killed a police officer, prosecutor, firefighter, emergency medical technician, judge, elected official or federal law enforcement agent while that victim was performing their job.
  • The defendant intentionally killed a person who had been kidnapped or held hostage.
  • The defendant was “party to an agreement” to kill someone.
  • The defendant killed someone while lying in wait or in an ambush or by use of a bomb or incendiary device.
  • The defendant committed a serious felony and then, while trying to get away, intentionally killed someone.
  • The defendant killed someone for financial gain.
  • While killing one person, the defendant knowingly created a “grave risk of death” to at least one other person.
  • The defendant killed someone to escape from custody or to avoid arrest, including the killing of a witness to a crime.
  • The defendant knowingly, intentionally or with “universal malice manifesting extreme indifference” killed two or more people during one incident.
  • The defendant killed a child under the age of 12.
  • The defendant killed the victim because of the victim’s race, religion or national origin.
  • The defendant killed a person with a weapon they were not legally allowed to have.
  • The defendant killed people in multiple incidents
  • The defendant intentionally killed a woman he or she knew to be pregnant.
  • The defendant committed the murder in “an especially heinous, cruel or depraved manner.”

Prosecutors must announce in advance their intention to seek death

Colorado’s court rules require prosecutors to announce within nine weeks after a defendant’s arraignment whether they will seek the death penalty. The arraignment is where a defendant enters a plea. In big cases, it typically occurs roughly in the middle of the case, after there has been a preliminary hearing to determine whether the defendant should be bound over for trial.

Juries must be “death qualified”

Death penalty trials require special juries because prosecutors and defense attorneys have to ask an additional question: Are you willing to impose a death sentence? Anyone who says they are 100 percent against the death penalty, no matter what the facts of the case are, is ineligible to sit on a capital jury. Anybody who says they would automatically impose a death sentence for any first-degree murder, regardless of the specific facts, also gets booted. This screening process makes the resulting jury “death qualified.”

Trials move in phases

Death penalty trials also have additional steps and require additional deliberation by the jury. The first half of the trial — the “guilt” phase — proceeds like any normal trial. Prosecutors and defense attorneys present their cases, and the jury decides whether the defendant is guilty or not guilty. Verdicts must be unanimous.

If the verdict is guilty, prosecutors who have given notice of their intent to seek the death penalty can then move into the “penalty” phase of the trial, where they and the defense will present additional evidence and the jury will deliberate anew. Depending on how the judge conducts the trial, there could be three steps in the penalty phase, each requiring the jury to deliberate and reach a unanimous verdict before moving on to the next step.

Aggravators vs mitigators

The penalty phase is where prosecutors must prove beyond a reasonable doubt that the defendant, in addition to committing murder, also committed at least one of those 17 elements listed above, known as “aggravators.” But, significantly, death penalty cases aren’t just about how awful a murder was. Unlike every other criminal trial in Colorado, death penalty cases also require juries to look at the entire life of the defendant before them.

State law lists 11 specific “mitigators” that aren’t defenses against guilt but might persuade a jury to give a defendant life instead of death. They are generally more open-ended than the aggravators, and there’s also a 12th mitigator that basically opens mitigation evidence up to anything that could be relevant. The 11 specified mitigators are:

  • The age of the defendant
  • That the defendant’s capacity to appreciate the wrongful of their actions or conform their conduct to the law was impaired.
  • That the defendant was “under unusual or substantial duress.”
  • That the defendant was involved in the killing but not the ringleader.
  • That the defendant “could not have reasonably foreseen” that their conduct would kill someone.
  • The emotional state of the defendant at the time of the murder.
  • The absence of any significant prior criminal history.
  • The extent to which the defendant cooperated with police or prosecutors.
  • The influence of drugs and alcohol.
  • That the defendant had a “good faith, although mistaken, belief” that there was a moral justification for their conduct.
  • That the defendant is not a continuing threat to society.

Once prosecutors have proved the aggravators and defense attorneys have presented the mitigators, the jury must decide whether the mitigators outweigh the aggravators. If they do not, the jury moves to its final bit of deliberation.

The sentencing decision

The last hurdle is where most capital cases that reach the penalty phase in Colorado fall. In the final analysis, juries make a moral choice about whether death is the appropriate punishment. There’s not really a legal standard to guide them here; if the trial has reached this far, then all the legal elements have been proved. Nothing in the law ever requires a jury to sentence someone to death. So this one is up to each juror individually and what they believe is right.

The jury must be unanimous for a death sentence to be handed down. This is why defense attorneys will often start as early as jury selection talking to jurors about the importance of respecting one another’s decisions at this phase and standing up to deliberation room bullies.

The front of the 10th Circuit Court of Appeals building in Denver, Oct. 16, 2018. (John Ingold, The Colorado Sun)

Appeals can take decades

Actually getting to a death sentence is only a fraction of the life of a typical death penalty case in Colorado. The appeals usually take much, much longer.

There’s basically three appeals that everyone sentenced to death is legally guaranteed, two in state court and one in federal court. The first in state court challenges the trial judge’s decisions in the trial — should certain evidence have been admitted or excluded, for instance. This is called the direct appeal. The second in state court is the better known one — the post-conviction appeal. This is where usually a new team of attorneys looks for new or undisclosed evidence or argues that a defendant’s trial lawyer made big mistakes.

These two appeals used to go one after another. But Colorado law now tries to speed up the process by making them run at the same time. (So far, it hasn’t made things any quicker.) Both appeals first start with the same judge who oversaw the trial. Then they go to the Colorado Court of Appeals and, finally, the Colorado Supreme Court.

Once the appeals in state court are exhausted, defendants can file an appeal in federal court arguing, basically, that the state court process was unfair. This appeal starts with a federal trial judge in Denver, then goes to the 10th U.S. Circuit Court of Appeals, also in Denver, and lastly to the U.S. Supreme Court. Defendants can try to file more appeals beyond these, but courts don’t have to hear them.

The governor has final say

Once all the appeals are done, the condemned’s attorney will usually draft a petition to the governor asking for clemency. The process here is really ill-defined, and the governor has broad discretion over whom to grant clemency to and why.

Clemency is different from a pardon. If granted, a killer’s sentence would usually be changed to life in prison. Depending on your perspective, this is one last check on the system or one last chance to thwart justice.

John Ingold is a co-founder of The Colorado Sun and a reporter currently specializing in health care coverage. Born and raised in Colorado Springs, John spent 18 years working at The Denver Post. Prior to that, he held internships at the Rocky Ford Daily Gazette, the Colorado Springs...