There are to be sure instances aplenty where wrongdoers are swiftly dispatched by the courts in our state; unfortunately, they’re overshadowed by cases like the legal odyssey that followed the murder of Robert Elshire.
Elshire, who was 71 when he was gunned down randomly as part of a gang initiation outside a southeast Springs drug store in 1993, had been visiting the city from Arkansas to run in the Pikes Peak Ascent. Damian Nicholas and Allan Lucero eventually were convicted of Elshire’s robbery and slaying and were sentenced to life in prison.
Only, justice was fleeting.
It turned out that Nicholas repeatedly had lied to police about his age during his interrogation – he’d said he was 18 when he was in fact 17 – and as a minor should have been able to have a parent present during police questioning. Nicholas’ lawyers argued to the trial judge that his statements during the interrogation should have been thrown out as a result. The trial judge didn’t go for it – after all, the defendant had only himself to blame for lying – and neither did the appellate court.
But the Colorado Supreme Court last January ruled 4-3 that even though Nicholas was interrogated as an adult because he had lied about his age, his statements during his interrogation nonetheless were inadmissible. The high court ordered a new trial, at which Nicholas’ statements to police could not be introduced as evidence.
That would present prosecutors with a tall task. Without Nicholas’ confession and given how old the rest of the testimony and evidence were by the time of the Supreme Court’s ruling, it would be difficult to secure another conviction.
And it got even more complicated. Nicholas’ defense attorney listed the Colorado Springs deputy district attorney who originally had prosecuted Nicholas as a possible witness in any retrial. The defense attorney contended the deputy DA might have to be called to testify if any of the prosecution witnesses from the first trial, in 1994-95, were to change their stories. So District Judge Gilbert Martinez removed the local District Attorney’s Office from the case altogether and assigned a special prosecutor from Pueblo.
Oh, and Lucero, Nicholas’ co-defendant and triggerman in Elshire’s slaying, escaped from prison Dec. 7 and remains at large. So it would be hard to call on him to testify.
Against such formidable odds, the special prosecutor proposed a plea bargain to Nicholas: Plead guilty to accessory to murder, punishable by no more than six years in prison and three years parole. At a Wednesday hearing Martinez said he would give Nicholas his new sentence next month, at which time he could walk free given the time he’s already served.
As Elshire’s daughter Connie Williams observed in a Gazette report, the only person who got a long-term sentence out of this tragedy was her father. At least, pending Lucero’s recapture.
No one of course could have foreseen Lucero’s escape. But Nicholas’ stroke of luck, sidestepping a life sentence because he was able to dupe police into thinking he was a year older than he was, lends new meaning to “legal technicality.”
That, in turn, does much to further undermine the public’s flagging faith in the justice system
A capital idea/ It’s time to dust off Colorado’s death penalty
Speaking of the public’s lack of faith in the courts, for the longest time Coloradans have been calling for the state’s death penalty to be applied in earnest. Sure, it’s on the books. Yet for the numerous cold-blooded killers convicted in our state in recent years, there’s been but one execution. And only one other convicted murderer has even been sentenced to death since Colorado law took the power of applying the death penalty away from juries in 1995 and put it in the hands of a three-judge panel.
That policy shift by the state legislature was intended in large part to make it easier to execute. Back when that decision had been left to jurors, it had to be unanimous; all it took was one juror with cold feet to thwart a death sentence.
Unfortunately, even allowing a panel of judges to make the call – supposedly, they’d be less subject to personal predilections and more mindful of the law when contemplating capital punishment – hasn’t resulted in any higher a percentage of death sentences than under the jury-based system.
The answer could well lie in a pending proposal by state Senate President Ray Powers, R-Colorado Springs, to further amend the procedure to leave the sentence on capital cases to the trial judge. That way, the judge who had heard all the evidence at trial would be the one to make the final call.
If the legislature goes for Powers’ proposal, ironically, it’ll simply bring us back to the way the procedure once worked throughout the country.
How the United States drifted from that simple, tried-and-tested approach to meting out the ultimate form of criminal justice is a long saga of misplaced agonizing by public policy makers starting in the 1960s, and contorted legal analyses by the courts. Indeed, for a time during the 1970s the death penalty was barred nationwide.
Colorado’s muddled approach to capital punishment in more recent years stems from two consecutive governors – Dick Lamm and Roy Romer – who had personal misgivings about the death penalty, and from their appointment of like-minded judges over a combined tenure of 24 years.
Romer’s last blow to capital punishment came with his insistence on the three-judge panel when Powers and some peers originally had sought to move death decisions from the jury back to judges. With a new governor, Bill Owens, who unflinchingly supports capital punishment, justice finally might be served a little more often in capital cases.