When Victims Speak Up in Court—in Defense of the Criminals

A death penalty case in Colorado has generated an unusual fight between a district attorney and two parents who oppose capital punishment against the man who murdered their son.
It can get crowded, and tricky, when a victim's family wants to negotiate with the state, the defense, and the judge in a criminal trial. (Mike McLaughin/Reuters)

One of the most profound changes in criminal justice over the past 40 years has been the rise of the victims' lobby. Essentially shut out of the core of the process until the 1970s, the victims' rights movement today can cite legislation from sea to sea, chapter and verse under both federal and state laws, that broadens the rights of victims to participate in the trials of those accused of harming them or their families. The Department of Justice's 2012 "Attorney General Guidelines for Victim and Witness Assistance," for example, totals 66 pages and barely scratches the surface of what similar state guidelines reveal.

The immutable trio that once existed in criminal cases— judge, prosecutor, and defendant—now almost always resembles a quartet. Victims have a voice—and they use it. All 50 states now allow some form of "victim impact statement" at sentencing. Because such statements are often so compelling to jurors, defense attorneys frequently seek ways to blunt their impact. But these efforts almost always fail. Even judges who are sympathetic to the constitutional rights of defendants, who fret about the prejudicial impact of victim testimony, say they are bound by legislative declarations broadening the scope of victim participation in criminal cases.

But a pending Colorado case raises a profound question that few judges (or prosecutors or jurors) ever have to confront: What happens when the victims of violent crime seek to speak out on behalf of the defendant and not the state? What happens when the family member of a murder victim seeks leave to beg jurors at sentencing to spare the life of the man who killed their son? What responsibility does the prosecutor have in that case? What obligations do the courts have? Do victims' rights sound only when they favor the government and the harshest sentence, or do they sound as well when they cry out for mercy?

So far, the prosecutor in the case, Arapahoe County District Attorney George Brauchler, has answered those questions clearly: He wants to block one couple's efforts to speak out against the death penalty for the man who murdered their child. Brauchler has filed a motion in a pending case seeking to bar Bob and Lola Autobee from participating in the sentencing phase of the trial of Edward Montour, their son's killer. The law only guarantees the rights of victims to "discuss the harm that resulted from the crime," Brauchler argues. But I haven't been able to find a single victims' right advocate who believes that's true.

People of the State of Colorado v. Montour

There doesn't seem to be much doubt, reasonable or otherwise, that Edward Montour killed Colorado corrections officer Eric Autobee in a prison kitchen on October 18, 2002. (Montour was in that kitchen, and in that prison, because he was serving a life sentence for killing his infant daughter.) Less than one year after Autobee's death, Montour pleaded guilty to first-degree murder and was quickly sentenced to death by a Colorado judge. But that death sentence was overturned, in 2007, after the United States Supreme Court ruled in Ring v. Arizona that judges alone, without juries, could not impose death sentences.

Then, last year, a trial judge overturned Montour's conviction and allowed the inmate to withdraw his initial guilty plea in the Autobee killing. Montour was not adequately defended by a lawyer at the time of that plea, the judge ruled, and had a documented history of mental illness. A new trial was ordered. Montour, through his attorney, said he would re-plead guilty to Autobee's murder if he could be spared the death penalty and receive a(nother) sentence of life in prison without the possibility of parole.  The prosecutor, Brauchler, rejected the offer and went ahead instead with now-pending capital case against Montour.

The last time Montour faced trial for Autobee's death, the victim's family supported the death penalty as an option. Not this time. This time, having educated themselves about capital punishment, and better understanding the nature of Montour's mental illness at the time of Eric's death, the Autobees have been vocally, stridently, ceaselessly against the imposition of death in this case. Earlier this month, for example, as potential jurors in the Montour case were lined up outside the courthouse waiting to learn about the case for which they were summoned, the Autobees picketed the line and pleaded with Brauchler to spare their son's killer.

Episodes like this -- and the media attention they inevitably generated -- prompted Brauchler, the prosecutor in the Montour case, to remove the family  from his preliminary list of witnesses to be called during the sentencing of the case. And that removal, in turn, has prompted Montour's attorneys to ask the trial judge in the case to allow the Autobees to testify during sentencing. That prompted an aggressive response from Brauchler, arguing that Colorado's victims' rights laws don't apply to "mitigating" factors during sentencing but only to "aggravating factors." And that is where we stand today.

The Autobees

The parents of the victim have spoken, and eloquently so, about the reasons why they have chosen to oppose the death penalty in this case. Below, from a court filing last Friday, is the essence of their claim:

Bob would like any jury considering the appropriate penalty for Eric's killer to know who Eric truly was and how his loss has impacted the Autobees. The Autobees loved Eric deeply, and now remember him for his peace-loving nature, his love of the outdoors, and his innate desire to find moments of calm when hunting or fishing. Eric was a gentle soul who would hold Bob's hands even when he was in his 20's. Eric started his career in the culinary arts and then, like Bob, became a prison corrections officer.

Despite the inhumanity he saw around him, Eric would not speak disdainfully of inmates, but, instead, recognized their human dignity. Eric accomplished much in his short time on earth — he saved three lives before he died — but missed out on even more. It pains the Autobees to consider the many milestones in Eric's life that might have occurred were he still alive, including marriage, children, and career advancement.

The crime affected the Autobees not just because of their beloved son's loss, but also because of who they became after this loss. After Eric's death, their warm feelings of love that Eric always nurtured quickly turned into cold feelings of vengeance and violence. Originally, the Autobees fervently supported the prosecution's efforts to seek absolute retribution. Over time, however, and with reflection, they realized that Eric would not have wanted this for himself or for them; Eric would not have wanted someone killed in his name, nor would he have wanted his family to live in the darkness of hatred. The Autobees know this because they know how Eric lived: by loving life, saving lives, and extending mercy to the merciless.

The effect of the crime on the Autobees cannot be separated from this ongoing death penalty prosecution. Bob and his family have found healing in the forgiveness that they have extended to their son's killer. However, the prosecution strives to forever undo this healing by seeking to avenge one killing with another, over the family's pleas for mercy. For the Autobee family, a death sentence and the accompanying years of litigation, all supposedly done in their son's name, would rob them of peace. For, in the eyes of society, their son's name forever would be associated with cruelty and violence, rather than the human dignity and mercy he embodied in life.

Call and Response

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Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, a fellow at the Brennan Center for Justice, and Commentary Editor at The Marshall Project

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