v

DISTRICT COURT, DOUGLAS COUNTY, COLORADO 4000 Justice Way Castle Rock, CO 80109

THE STATE OF COLORADO

vs.

EDWARD MONTOUR,JR.

Defendant.

2012 JUL 18 '1 i',:."':' ,'; ~irI/: .

£ COURT USE ONLY • Defense Attorneys:

Case Number: 02CR782 roAVID A. LANE, #i6422 (Douglas County) KILMER, LANE & NEWMAN, LLP 1543 Champa Street, Ste 400 Lincoln County Case Number Denver, Colorado 80202 02 CR 95 Phone 303-571-1000; Fax '303-571-1001 dlane@l(ln-Iaw.com Division: 3 - Courtroom 3

KATHRYN J. STIMSON #36783 Richard B. Caschette 1543 Champa Street, Suite 400 District Court Judge - Div. 3 Denver, CO 80202 Douglas County Justice Center [I'elephone: (720) 339-7132 Fax: (303) 571-1001 4000 Justice Way - Ste 2009 Kathrvn@stilllsondefense.com Castle Rock CO 80109

Phone: 303-663-7210 HOLLIS A. WHITSON, #32911 Fax: 303-814-7613 SAMLER AND WHITSON, PC I 127 Auraria Parkway, Ste 201B, Denver, CO 80204 Phone 303-670~0575

hollis.whitsoneaamail.com

D-181 (2012-07-11) SUBMISSION OF MURDER STUDY REPORT

Edward Montour, Jr., by and through counsel, submits the Preliminary Murder Study Report in support ofD-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. Ifadditional data or analysis is done before the hearing on this matter, Mr. Montour will of course supplement or amend this submission.

1

2. Mr. Montour explicitly does not waive any of the 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 scatteredaround the globe. Thus, the expert team has submitted this pdf report to me, which contains e-signatures until they can gather originaland 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. J'

DAV A.LANE KATHRYN J. STIMSON HOLLIS WHITSON .

CERTIFICATE OF MAILING:

I certify that a true., accurate and complete copy of the foregoing was emailed to the following on July 11, 2012: .

richard.caschetteriVjudicial.state.co.us; amanda.·venenga@judicial. state.co.lIS;

anlv.joh.nsoll@judicial.state.co.us; ·jtopolnicki@da18.state.co.us; djones@da18.state.co.us; daniel. edwards@state.co.us; Inatthew. durkin@state.co.us; 'j ad.kins@da18.state.co .us; ebillgham@da18.state.co.us

c;4lh6t= ,

2

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, 2010. The purpose of the study is to

evaluate the effectiveness of Colorado's aggravating factors in narrowing the classof 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.'

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 2008.

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 necessaryadjustments 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

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 1999. 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

Reviewand 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 § 18-1.3-1201(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 877-78.

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

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' "underour 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

classof persons eligible for the death penalty ... violates the constitutional ban on cruel and

unusual punishment")."

8. Our conclusions regarding the constitutionality of the Colorado capital sentencing system are

also informed by the fact that in Furman v. Georqia, 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, 1,

concurring); ide at 386 (Burger, C.l, dissenting). See also id., at 436 n. 19 (Powell, 1, dissenting).

That is to say, a death sentence rate of 15-20% has previously been recognized as irreconcilable

with the Eighth Amendment.'

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 classof offenders, Colorado RevisedStatute § 18-3-102 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.

3See Steven F. Shatz, The Eighth Amendment, the Death Penalty, and Ordinary Robbery-Burglary Murderers: A California CaseStudy, 59 FLA.1. REV.719, 745-746 (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% ofdeath-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.V.U.L. REV. 12831 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

StudyMethodologyand 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, 2010. 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. Specificallv, on

June 24, 2011, Jessica Zender, a policy analyst for the Colorado Judicial Branch, Division of

Planning and Analysis emailed to counsel the list of murder cases filed between January 1, 1999,

and December 31, 2010.

11. The total number of murder cas~s identified by Ms. Zender for the relevant period of time was

1,350. 4

12. 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 ("OCT").

13. The OCT assisted our expert review and study in a number of ways. Most importantly, the OCT

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 OCT 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 OCT was asked to eliminate casesfrom the t!

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 Roperv. 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 fist 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

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." We excluded three additional caseson 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 OCT-excluded cases based on these criteria is 662. Of the 662 cases

excluded by the OCT,Swere 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 OCT 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 OCT was tasked with compiling as much information

as possible about each of the murders. The OCT gathered case dockets, charging information,

appellate court decisions, police reports and affidavits contained in the district court file, and

media accounts. Based on the OCT's research, a "case file" was constructed that included all of

the information that the OCT 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 OCT 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 casefile, the case

was sent back to the OCT for additional research. If, after additional research, there was still

insufficient information, the casewas 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 casesare still being researched by

members of the OCT.

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 deceasedvictim 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

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- Le., 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 OCT

compiled our conclusions.

23. Of the casesstudied, there were 535 casesthat 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 casesthat 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 prlnciples." 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 OCT 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."

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 aswe review and finalize our data analysis.

91t 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

aggravating factor beyond a reasonable doubt." 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 casefile.

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 asto 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" 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 (485 + 15 = SOD), and divided this figure by the

total number of first degree, Enmund/Tison-eligible murder cases including death noticed cases

(529 + 15 = 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, 428-29 (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 casesduring 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. 200S)(Denver County 1999CR2738)(basedon 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 caseswhere the prosecution noticed death and was not legally barred from pursuing a death sentence at trial.

8

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," the State sought death,

pretrial, in 15 cases, and, under the statute, it could have sought death in 500 cases."

Consequently, the pretrial death prosecution rate was is/SOD, 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." 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" 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%.17

12 See supra note 7.

13 Supra note 11.

~4 The denominator, SOO, is based upon 485 factual or procedural first degree murder casesin 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 casesat 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 casesin 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 14.

17 Eventhis 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 successfuldeath 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 asthe state court review process has not yet concluded.

9

.~ I

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 IOW. 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." 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." 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. Becauseof 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 casesunder 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

classof 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").

18Supraparagraph 29.

19Furman 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. 69-5003 estimated that the ratio is 12 or 13 to one. Tr. of Oral Arg. in

Furman v. Georgia, No. 69-5003, 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

1907-1960, 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 435-436 (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, 1924-1968, 15 Crime & Delin. 132 (1969)").

20 See, e.g., supra note 3.

10

32. The statutory scheme in place in Colorado fails to carefully limit prosecutorial, judge, and jury

discretion in seeking and imposing sentences ofdeath 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. 21

33. This study allows us to document the extent to which Colorado's capital sentencing statute fails

to genuinely narrow the classof 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, 2012.

~s Justin J\1.arceau _

Justin F. Marceau

Associate Professor of Law

University of Denver, Sturm College of Law

.2255 E. EvansAve., Denver, CO80208

jmarceau@law.du.edu

~s Sam Xamin _

Sam Kamin

Professor of Law

University of Denver, Sturm College of Law

2255 E. EvansAve., Denver, CO80208

skamin@law.du.edu

~s Wanda :fogfia _

Wanda D. Foglia

Professor of Law and Justice Studies, Rowan University

201 Mullica Hill Road, Glassboro, NJ 08028

Foglia@rowan.edu

21Colorado has seventeen separate statutory aggravating factors. C.R.S. § 18-1.3-1201(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 BILLRTS. 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.").

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