The Colorado Massacre Draws a Controversial Prosecutor

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When Colorado mass murder suspect James E. Holmes makes his first court appearance early Monday -- he won't be charged or enter a plea -- he may face for the first time a veteran prosecutor who seems to have been waiting for this sort of bright-lights murder case her whole professional life. 18th Judicial District Attorney Carol Chambers, lead prosecutor of the next case of the century, has rarely spent time out of the local limelight. And now comes a case with vast international attention focused upon it -- just in time for her looming departure from office later this year.

It is 1-9 on the morning line that Chambers will seek the death penalty against Holmes for his alleged role in the midnight Friday sneak attack on moviegoers at a "Batman" premiere in Aurora. Police and witnesses say that Holmes systematically murdered 12 people and wounded or injured 58 more in one of Colorado's deadliest episodes of gun violence. The fact that more than one person was killed, and the fact that one of the victims is under the age of 12, satisfies the state's statutory requirements for a capital prosecution. The fact that Chambers is the prosecutor here virtually guarantees it.

For better or worse, Chambers is Colorado's most controversial prosecutor; hard-ass, always on the edge, seemingly always in some sort of trouble. More broadly, she's also become a sort of national symbol in the criminal justice systems' eternal war over capital punishment. In 2008, for example, Chambers daringly billed the state for charges incurred by her county in capital prosecutions, a move that raised hackles at the state legislature. At the time, Chambers' office was pursuing six of the seven capital cases wending their way slowly through the state's judicial system.

That's a lot of pending capital cases for a prosecutor in a state which notably, and often proudly, does not embrace the death penalty the way many of its neighboring states do. Long the symbol of the Wild West, Colorado nonetheless has only three men currently on its death row and has executed only one man (Gary Lee Davis, in 1997) in the past 40 years. There are no scheduled executions, either. You would expect to find a prosecutor like Chambers in Texas. You'd reckon she would find a home in Georgia and Louisiana, too, which embrace aggressive death penalty prosecutions. But Colorado?

Chambers is a very successful prosecutor. She has the experience, talent and intellect necessary to prosecute the coming Holmes case in a productive way. But she doesn't necessarily come to her most famous case, her legacy case, with completely clean hands. Colorado's most intrepid investigative journalist, Alan Prendergast, who has covered Chambers relentlessly for Denver's Westword newspaper, put it this way back in 2008:

Controversy is nothing new to Chambers, who took office in 2004 after an upset victory in the Republican primary. Vowing to streamline the processes of justice in booming Arapahoe and Douglas counties, she's filed grievances against defense attorneys she considers unprofessional and ordered her staff to time judges' breaks. In 2006, a disciplinary panel publicly reprimanded her for interfering in a civil case involving a political ally.

She's also pursued habitual criminal charges against hundreds of chronic but low-level offenders, forcing them to accept lengthy prison terms in plea deals or risk more draconian sentences by going to trial ("The Punisher," February 8, 2007). "My objective has never been to make everybody like me," Chambers told Westword in an interview last year. "I'm going to do what I was elected to do."

That was before Chambers got in trouble again, in 2010, when she was accused of improperly providing benefits -- the donation of a car and automobile insurance -- to key prosecution witnesses without telling defense attorneys of the arrangements. Once again Prendergast was on the case. Once again he filed for Westword. Here's what he wrote in 2010:

Although she's pursued more death-penalty cases than any other current district attorney in the state, Chambers' efforts have been dogged by disclosure issues and ethical quagmires. Her attempts to obtain the ultimate penalty for David Bueno and Alejandro Perez, two inmates accused of killing another prisoner at the Limon Correctional Facility, were derailed repeatedly. Her office was removed from the Perez case after a judge raised concerns about prosecutors failing to disclose conflicts of interest and billing the Department of Corrections for some salaries and other costs of its death-penalty team.
Although a higher court reinstated Chambers' office on the case, Perez was acquitted last February. As for Bueno, a jury convicted him but refused to impose the death penalty. But that conviction was thrown out by another judge, who blasted prosecutors for "withholding relevant and possibly exculpatory evidence." Chambers is appealing that ruling.

It's hard to know what Chambers thinks of the looming Holmes' case. On the one hand, it's finally a global forum for her. On the other hand, she almost certainly won't be around for the case's end. Chambers is term-limited. Her successor will be determined by November's election. Prendergast told me Sunday that he expects Chambers will "work quickly to prepare a possible capital case against Holmes" before handing off the prosecution. "At first glance," Prendergast wrote me via email:

She appears to be the ideal prosecutor to pursue a capital cases for this horrific crime. She's known for being unorthodox and not particularly concerned about what the electorate thinks of her decisions. But it's important to remember that while she's been successful in some high-profile death penalty cases, she's lost others because of questionable conduct by her office. She's also used the death penalty in much the same way she's used the habitual criminal statute -- as a club to obtain plea bargains.

Can you see a plea bargain in the case of People v. James Holmes? It all depends upon what Holmes' coming mental evaluations tell us. It depends upon what the victims and survivors want. It depends upon what a judge and jury say about the evidence they one day may see in open court. In the meantime, in the next few months, Chambers and company will be focused instead upon defense requests for venue changes and incompetency hearings. The thing about Colorado? It's still a small town. All the defense attorneys know all the prosecutors. Sadly, despite even the horror of Friday's sudden death, the only thing new here are the klieg lights.

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Andrew Cohen is a contributing editor at The Atlantic, 60 Minutes' first-ever legal analyst, and a fellow at the Brennan Center for Justice. He is also chief analyst for CBS Radio News and has won a Murrow Award as one of the nation's leading legal journalists. More

Cohen is the winner of the American Bar Association’s 2012 Silver Gavel Award for his Atlantic commentary about the death penalty in America and the winner of the Humane Society’s 2012 Genesis Award for his coverage of the plight of America’s wild horses. A racehorse owner and breeder, Cohen also is a two-time winner of both the John Hervey and O’Brien Awards for distinguished commentary about horse racing.

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