DENVER (CBS4) – James Holmes was not sentenced to death and instead will spend the rest of his life behind bars without the possibility of parole. Dexter Lewis awaits a jury’s decision on whether he will be sentenced to death. Colorado has three people on death row right now. But just how does the death penalty work in Colorado? CBS4’s Alan Gionet took a closer look at the process.
Father Ben Bacino, pastor at a church in Pueblo these days, ministered to murderer Gary Davis and witnessed his killing.
“It was all sort of resolute,” said Bacino. “This is what I did, this is the sentence, they’re carrying out the sentence and this is pretty much it.”
“Oh, yeah, he regretted what happened,” Bacino told Gionet. “He wasn’t terrorized by it.”
Davis was the last to be executed in Colorado. He was also the first since the death penalty was reinstated in the 1970s. His execution for the 1986 brutal rape and killing of his neighbor Virginia May in Byers took eleven years to carry out. Davis had stopped his appeals at one point, then took them up again.
“Do you think it’s painful to the person?” Gionet asked Bacino.
“What I could see, no. It was not painful at all. There was no wincing or anything like that, he just fell asleep,” he replied.
Lethal injection is required by State Statute in Colorado. There remain questions of whether the Department of Corrections can even obtain the drugs used to kill, amid a national debate over the production of drugs to kill. But that may be part of the issue that’s far down the road.
First it was Holmes who could have faced death by execution, then Lewis. Two mass killings close together in 2012, nearly three years before they each went to trial. The theater shooting in July that left 12 dead and the stabbings at Fero’s Bar in Denver in October of 2012 that left five dead.
Juries now make the call in Colorado after trials that are divided between death, then a three-stage death penalty phase. After a jury decides unanimously on death in Colorado, the judge issues an execution order to be carried out between 91 and 126 days later. But that date is essentially meaningless. A death sentence goes to automatic appeals at the State Supreme Court.
Then things slowdown said CBS4 legal analyst and former death penalty case prosecutor Karen Steinhauser.
“Whenever there’s an appellate process involved, then the execution is what we call ‘stayed.’ So it’s basically put on hold until the courts make additional decisions,” Steinhauser said.
Appeals can take years. Court reporters have to put together all of the transcripts from motion hearings. Each side is given an opportunity to write a brief and respond to briefs that the other side writes, then the courts schedule oral arguments. The courts write their opinions. Beyond the State Supreme Court, appeals can lead through federal district appeals up to the U.S. Supreme Court.
Ultimately after the appeals are exhausted, there’s a date set for execution and the governor has to sign a death warrant. This is often when governors weigh in, as Gov. John Hickenlooper did with one of Colorado’s three death row inmates, Nathan Dunlap.
In 2013 he effectively put off Dunlap’s execution by issuing and Executive Order. That was 14 years after Dunlap was sentenced. It expressed Hickenlooper’s reservation about the death penalty, citing the inequity of its application – his observation that some are sentenced to death for crimes than may have seemed less heinous than others sentenced to life.
All three of Colorado’s death row inmates were convicted in Arapahoe County where Holmes was tried. All three are black. Dexter Lewis is being tried in Denver, where the last attempt at a death sentence in 14 years ago ended not with death, but a life sentence.
While many states prohibit the governor to be involved until after appeals, that’s not what we found when we looked at Colorado’s Statutes.
“You know there’s nothing that says that he can’t that I could see,” said Steinhauser. But, “ I would find it very hard to see that without being requested to look at whether… the sentence should be commuted that the governor would get involved.”
Hickenlooper was clear in his reprieve of Dunlap’s sentence that he has serious reservations about the death penalty.
His office told us, “The governor will not weigh in on active cases so the judicial process can proceed accordingly,” and it, “Would be very unlikely that any case happening now would reach this governor.” Hickenlooper acted on Dunlap, only when it came to him.
So far, he has left alone the sentences of Colorado’s two other death row inmates, Robert Ray and Sir Mario Owens for the killings of witnesses Javad Marshall-Fields and Vivian Wolfe.
Only with the governor’s approval is the sentence of death carried out. Dunlap’s execution can be picked up again by the next governor. With appeals still pending, Ray and Owens potential dates will come years after Hickenlooper leaves office, as would Lewis. Meantime, they wait on death row at the Sterling Correctional Institute.
Father Bacino described watching Davis’ death sentence being carried out.
“They put one in to stop the lungs and one to stop the heart, and obviously one to put the person to sleep; and I noticed he just sort of nodded off,” Bacino said. “And then it was shortly after that you could see the black circles under his eyes appeared and the doctor came up and said he pronounced him dead.”
That ended 11 years after Davis’ crime.
“I imagine as a priest you’re opposed to the death penalty?” Gionet asked Bacino.
“Yes. That’s the spiritual part of me. Then there’s a human part of me that maybe calls for it also. It’s sort of a tug of war,” he replied.