Death Be Not Proud

I’m just a plainspoken Colorado criminal defense lawyer, but the way I see it…

I have never been the sort of defense attorney who categorically sees the prosecutor as the enemy, a soldier of The Dark Side. Just as there are many fine lawyers who choose to defend the Constitution and the individual from overreaching government, there are many fine lawyers who have chosen to pursue justice through prosecution.

But some prosecutors…well some prosecutors are just plain evil.

George Brauchler is the current district attorney in the district of my state that has a proud tradition of putting convicted murderers on death row with an enthusiasm that would put Satan’s minions to shame. Not enough to lock them up forever, alone in their cells 23 hours a day every stinking day left to them. No, Brauchler wants them dead, and surely hopes that Jesus, God, or whoever is responsible for the afterlife agrees with him and further sentences them to everlasting hellfire.

That’s just the kind of champion of justice he is. Whetted his appetite for the death penalty early on as chief prosecutor for the Northern District of Iraq under the U.S. occupation.

Only yesterday he was bemoaning another candidate nominated for lethal injection who somehow slipped from his grasp. Edward Montour was originally put on death row in 2003. He wanted to be. He represented himself in court and said yes, he killed a prison guard while serving time for another death he said he did not cause. The judge thanked him for his admission and sentenced him to death. The death sentence was overturned four years later when the Colorado Supreme Court said only a jury can impose a death sentence.

The judge probably thought a death sentence fitting, especially because the crime for which Montour was originally convicted and in prison, was the intentional death of his 11-week-old daughter, which Montour always maintained occurred when he accidentally dropped her.

Here comes the evil part.

Not the evil of a father who killed his child, but the evil of a district attorney who apparently believes he didn’t. Montour’s attorneys, trying not to free, but save the life of this man who always admitted killing his guard, were about to introduce medical evidence regarding his earlier trial that would prove his child’s death was accidental. A wrongful conviction, his attorneys would argue, and festering mental illness in prison, led to the killing of the guard, for which Montour should not be put to death.

And Brauchler, this self-professed champion of justice who believes “justice is death” and “death is justice” — his two favorite bumper stickers — admitted yesterday he feared that the jury, which had just heard opening statements, would believe the new evidence.

Why wouldn’t they believe it?

The parents of the murdered guard believe it: they’ve been pleading, pleading with Brauchler not to take an eye for an eye, not to dishonor their son’s death with another death their son would not seek. “That is not the legacy he would have wanted,” they implored.

The coroner, who originally ruled Montour’s daughter’s death a homicide, believes it. Last week that coroner changed the cause of death to “undetermined.”

There is every reason to think Brauchler believes it. A juror was told by the prosecutors that the earlier case would be overturned because the new evidence “was overwhelming.” The prosecutors “had no doubt that we would walk away believing that (Montour) was wrongfully convicted and wrongfully imprisoned. Thus, our sympathy for his wrongful conviction would cause us not to impose death and so they felt they must get life without parole so Montour never gets out.”

In exchange for Montour’s agreement to plead guilty and be sentenced to life without parole, D.A. (“Justice Is Death; Death Is Justice”) Brauchler finally put away his poison needles. Montour will not, after all, be executed by his government.

A terrible defeat for justice.

[Personal Note: One of Edward Montour’s attorneys is David Lane. Lane was my death penalty jurisprudence professor in law school, and he demonstrated beyond all reasonable doubt, not by emotion but by the painstaking laying out of the evidence, that the death penalty could never be administered fairly and impartially. I had always believed that, but he proved it to me with the rational tools of a practicing lawyer. I am ever grateful to him, for that.]