Theater rampage suspect has allies 
in opponents of the death penalty

A winding saga that involves the fatal beating of a Limon prison guard 10 years ago, the flamboyant lawyer who represented Ward Churchill and the fierce campaigning of anti-death-penalty activists will play a prominent role in determining whether James Holmes receives the death penalty. Holmes is the brainiak allegedly turned butcher who is the suspect in the methodical rampage that took the life of 12 men, women and children in an Aurora theater last month.

It is a tale so bizarre that it could only be the stuff of the American criminal justice system, the American political system or both.

And its potential implications are most absurd of all: The wildly inventive legal arguments of Ward Churchill’s one-time lawyer, and the mini-campaign being waged by deep-pocketed, anti-death-penalty organizations may be the best hope Holmes has to live out the rest of his days, rather than face the death penalty.

Our sordid saga begins in a state prison in Limon in October 2002, when Eric Autobee, a 23-year-old working at the prison, was brutally beaten to death by Edward Montour. Such atrocities come easily to Montour, apparently. At the time, he was serving life without parole for the first degree murder of his daughter, only 11-months old when she was bludgeoned to death by Montour. 

Having pled guilty to Autobee’s slaying, the wheels of justice turned apace, and Montour — now twice-proven indisputable monster — was sentenced to die by a judge. 

Only one person has been executed in this state since 1976, and just three people are currently on death row. If you’re sentenced to be executed in Colorado, suffice it to say, you earned it.

Montour’s prospects for ducking death row improved dramatically, thanks to the work of a lawyer whose particular specialty is the wanton application of sand in the gears of justice. His name: David Lane, the attorney who’s defended everyone from Ward Churchill to the parents of Balloon Boy. Think Gloria Allred at 5280. 

During the bizzar-oh Balloon Boy saga, Lane famously said: “I have no idea what so-called evidence they have (against Balloon Boys parents).” Uh, sure. The parents of Balloon Boy were convicted and later apologized.

Several years ago, the Colorado Supreme Court threw out Montour’s death sentence, even though Montour copped to the crime, saying the death sentence was a decision for a jury, not a judge. But, when his sentencing was sent to a jury (as requested), Lane argued that the mandated rehearing was tantamount to double jeopardy, and therefore forbidden by the Constitution. Ergo, Lane argued, the death penalty couldn’t be applied. Thankfully, a federal judge chucked the argument.

Making matters so much the worse, however, is that Lane apparently has an even grander strategy for his next act — get Colorado’s death penalty thrown out altogether.

Witness last month and the concocted legal argument made by three lawyers, commissioned by none other than David Lane. The argument concludes that, because Colorado’s death sentence is applied so infrequently in a state where so many crimes are eligible for it, the punishment is unconstitutionally arbitrary. This is a remarkable argument since in Texas, left- wing lawyers have repeatedly tried to get the death penalty thrown out because it is used too frequently. 

Though intellectually flimsy, the repeal effort has more than a remote shot at success because it will likely be decided by Colorado’s infamously activist Supreme Court — the same court that already once remanded the Montour sentence.

If they fail in court, the well-heeled, anti-death-penalty cabal that’s waging the same fight across the nation is clearly girding for a legislative fight.

A few years ago, death penalty opponents were one vote — yes, one vote — from winning its elimination. Citing the Lane-commissioned study, a Denver Post editorial recently screamed, “Kill the death penalty.”  You can bet that this legislative session, Democrats will again try.

Watching all this closely will be a young man with red-stained hair and a soul that appears colored black. If David Lane and the anti-death-penalty cabal wins, it won’t be just child-killer Edward Montour who dodges the ultimate punishment.  So, too, will James Holmes. A victory for the opponents of the death penalty here in Colorado will more directly be his.

Josh Penry is a former minority leader of the Colorado Senate. He is a graduate of Grand Junction High School and Mesa State College.


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