Attempt to allow 'death penalty phase' retrial in class 1 felony cases dies in committee

DENVER - A bill that would have allowed a second jury to “retry” the aggravation and penalty phases of a death penalty case, in the event the original jury couldn't reach a unanimous verdict, died in committee Monday afternoon.

Death penalty advocates say it’s an issue that could still end up before voters.

House Bill 16-1233, sponsored by Rep. Kim Ransom, R-Douglas County, would have changed the sentencing process for class 1 felonies when the death penalty is being sought.

It would have created an aggravation phase requiring the prosecution to prove one or more aggravating circumstances beyond a reasonable doubt.

It would have also created a penalty phase where the defendant had the burden to prove one or more mitigating circumstances by a preponderance of evidence, with the jury determining unanimously whether the mitigating circumstances call for leniency. 

If jurors couldn’t reach a unanimous verdict, the bill established a procedure for a (single) retrial of the aggravation and penalty phases.

18th Judicial District Attorney George Brauchler said the bill would have “put us closer” to getting a realistic shot at justice.

“In the State of Colorado, we have an extra step that no one else has,” Brauchler said.  “Jurors can substitute their own individual, reasoned moral judgment for any factual or legal findings they previously found.  This is a bill that says, ‘listen, if we’re going to have such a subjective, different situation to get through, one person shouldn’t be allowed to hang up the process.’”

The DA was referring to the theater shooting case where jurors determined that James Holmes was guilty of multiple counts of First Degree Murder and that there were multiple aggravating factors, but still one juror held out against the death penalty.

But opponents of the bill said allowing a second jury to come in and retry the aggravation and penalty phase would have disrespected the original jury’s overall decision.

“We shouldn’t basically say, ‘well, you didn’t reach the right verdict, so we’re going to throw out your decision,’” said Peter Severson of the Lutheran Advocacy Ministry of Colorado. “Our belief, as a church, is that it should not be easier to reach a death penalty verdict.  The system we have in place is there for a reason.  We should respect the conscientious decision of those jurors.”

One of the jurors in the Holmes case feels otherwise.

“I gave four months of my life to that case,” she said. “It came down to one person overruling the others.  That shouldn’t be the end of it," she said.

But there wasn’t enough support in the House State, Veterans and Military Affairs Committee to make the change.  Lawmakers voted 6 to 3 to postpone the bill indefinitely.

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