A Response on Behalf of the Colorado District Attorneys' Council

JurisdictionColorado,United States
CitationVol. 30 No. 8 Pg. 48
Publication year2001
30 Colo.Law. 48
Colorado Lawyer

2001, August, Pg. 48. A Response on Behalf of the Colorado District Attorneys' Council


Vol. 30, No. 8, Pg. 48

The Colorado Lawyer
August 2001
Vol. 30, No. 8 [Page 48]

CBA Board of Governors' Resolution on a Death Penalty Moratorium: Two Viewpoints
A Response on Behalf of the Colorado District Attorneys' Council
by Steven L. Bernard

Assistant District Attorney, Seventeenth Judicial District

On December 10, 2000, the Board of Governors of the Colorado Bar Association adopted a Resolution calling for a moratorium on the imposition of the death penalty until "each jurisdiction that imposes capital punishment" implements certain policies and procedures consistent with those promulgated by the American Bar Association. The Resolution is reproduced, in its entirety, above

The Resolution reads that the Board of Governors "takes no position on the death penalty, nor on the issue of whether the policies and procedures used in the State of Colorado adequately address the concerns expressed herein." In other words, the Board of Governors assumed that problems exist here with the imposition of capital punishment, but did not take a position on whether Colorado's law solved them. Issuing the Resolution without investigating, and commenting upon, whether Colorado's law solves whatever problems might exist was careless

This response, divided into three segments, will show that the problems described in the Resolution are not to be found in Colorado. The first part summarizes each case of a defendant presently on death row, plus the case of Gary Davis, the first person executed in Colorado since 1967. The second section is a short history of the death penalty and a description of how the process works in this state. The third part analyzes the Resolution in light of Colorado law and the cases of the men on death row.

The Residents of Colorado's Death Row

A description of each of the residents of death row follows.1

Gary Lee Davis

In July 1986, 41-year-old Gary Davis and his wife kidnapped a woman, Virginia May, in front of her children, drove her to a deserted field, and raped her to fulfill Davis's sexual fantasy. Though she begged for her life, Davis struck May in the head with the butt of a rifle and then shot her fourteen times.

Davis testified at trial and admitted his guilt. He was no stranger to the criminal justice system, being on parole for a 1982 first-degree sexual assault conviction at the time of the murder. Davis also had three other felony convictions: grand larceny in Kansas in 1970; a 1971 Kansas burglary; and felony menacing in Colorado in 1979.

Davis was convicted and sentenced to die in 1987. He was put to death by lethal injection in October 1997.2

Nathan Dunlap

In the summer of 1993, 19-year-old Nathan Dunlap shot five people in the course of robbing a Chuck E. Cheese restaurant in Aurora. Four of them died. The sole survivor identified Dunlap as the gunman. Dunlap had recently been fired from his job as a cook at the restaurant.

Dunlap exulted in killing his victims, bragging about his crimes and fashioning a jail tattoo memorializing the murders. He had been involved in a series of armed robberies and a shooting attempt on a school rival before he committed the quadruple homicide. He also attempted to escape after he was arrested for the murders.

The Colorado Supreme Court unanimously affirmed Dunlap's death sentence, finding there was no question regarding his guilt.3 Dunlap's case is currently undergoing post-conviction review.

Robert Eliot Harlan

Robert Harlan raped a stranger, a woman named Rhonda Maloney, at gunpoint for two hours during a snowy, early morning in February 1994. After Maloney escaped from him and flagged down a passing motorist, Harlan chased them, firing shots at them from his car. One of the bullets severed the motorist's spine, rendering her a paraplegic. Maloney was taken screaming from the car. Over the next few hours, Harlan beat her savagely and finally killed her by shooting her in the head. Harlan was linked to Maloney's murder by overwhelming evidence, including eyewitness identification, DNA testimony, and his own statement to the police, in which he admitted being with the victim just before the "Good Samaritan" picked her up.

Harlan, about 30 years old at the time of the murder, was a drug dealer. He had sexually abused women before. He once told his ex-wife that he drove around at night looking for women walking alone so that he could think of ways to rape and kill them and get away with it. The Colorado Supreme Court affirmed Harlan's conviction and sentence in 2000, and his petition for a writ of certiorari was recently denied by the U.S. Supreme Court.4

Francisco Martinez, Jr.

Along with fellow gang members, Francisco Martinez, Jr. beat, raped, and sodomized a 14-year-old girl. While other gangsters held her in place in the back seat of a car, Martinez stabbed her numerous times and then strangled her. At a turn-out in Clear Creek Canyon, the girl was dragged out of the car, stabbed some more and then thrown, still alive, onto some boulders lining the riverbank. The girl bled to death, having been stabbed twenty-eight times.

An uninvolved eyewitness testified about Martinez's extraordinarily brutal treatment of the girl during the sexual assaults. There was also physical evidence and the testimony of other gang members.5

Martinez had a juvenile adjudication for assault in 1989, a conviction for possession of a controlled substance in 1992 and a conviction for theft from a...

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