How a Colorado Judge Just Blocked the Victims' Right Movement

According to a new ruling, the parents of a murdered man are not allowed to tell jurors that they oppose the death penalty.
A death penalty protestor stands outside San Quentin. (Paul Sakuma/AP)

Late Wednesday, a trial judge in Colorado, a former prosecutor, issued a ruling that precludes the parents of a murder victim from telling jurors of their profound opposition to the imposition of a death sentence against the man who killed their son. The "appropriate audience" for the parents' complaints about the prosecution's use of "their son's name in the pursuit of the death penalty," the judge wrote in a footnote, is the prosecutor, who, of course, already has decided that the defendant should be put to death if found guilty.

Here is a link to the ruling by a district court judge that blocks Bob and Lola Autobee from providing jurors with the "victim impact" testimony they wish to provide on behalf of Edward Montour, the man who killed their son, Eric, who was a corrections officer. "The Court is unaware of any binding statutes or case law that would allow" the trial testimony that the Autobees seek, the judge ruled, although he will permit the family to testify as "mitigation witnesses." Specifically, the judge ruled that: "The Autobees may testify about the emotional impact of a death sentence or a life sentence... However, the Autobees will not be allowed to testify about what sentence the jury should impose."

How exactly this will play out in court—with the judge, prosecutor, and defense attorneys parsing what words the Autobees may use—is today impossible to predict. Can the Autobees tell jurors, for example, that a "death sentence" against Montour would have a terrible emotional impact upon them? Can they tell jurors that a life sentence without the possibility of parole for Montour would have made their son happy? By seeking to endorse a compromise here, the judge may have ended up with more trouble than he knows.

In any event, the ruling, it if stands, vitiates some of the moral force the victims' rights movement has earned over the years by making the movement seem more like a tool for prosecutors. Indeed, it is hard to imagine that prosecutors would have fought this hard to preclude this testimony from gracing the ears of jurors if this grieving family were supportive of the death penalty. Here is The Atlantic's prior coverage of this remarkable story. And here is the gist of the family's testimony that the judge now has forbidden to be shared with jurors:

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.

Perhaps the least defensible part of this ruling is the Colorado judge's unforced reliance upon a 25-year-old federal case out of Oklahoma, a case decided by the 10th U.S. Circuit Court of Appeals, that "upheld the trial court's decision to preclude the victim's family from asking the jury not to impose the death penalty." The Tenth Circuit found:

that such evidence is not relevant mitigating evidence because "[a]n individual's personal opinion of how the sentencing jury should acquit its responsibility, even though supported by reasons, relates to neither the character or record of the defendant nor to the circumstances of the offense.

The Tenth Circuit reasoned that:

[A]llowing any person to opine whether the death penalty should be invoked would interfere with the jury's performance of its duty to exercise the conscience of the community. Because the offense was committed not against the victim but against the community as a whole, in Oklahoma only the community, speaking through the jury, has the right to determine what punishment should be administered.

This is such warped reasoning (coming to boot from an Oklahoma case decided before passage of Colorado's modern victim impact laws) that it's hard to know where to begin. First, the Autobees are not "any person"—they are the parents of a slain son. Second, how possibly could any jury fully "exercise the conscience of the community" without taking into account the views of the people in that community most closely affected by the crime? Third, what exactly are victims' rights anyway if only the "community, speaking through the jury" gets to speak on behalf of the victim? Finally, does it not directly reflect upon the character of the victim, Eric Autobee, that his parents believe that he would not have wanted a death penalty for the man who killed him?

This judge's compromise is no compromise at all and it lays bare a double-standard that is inconsistent with the aims of the victims' rights movement. It's a decision that ought to be promptly overturned, either by the Colorado Supreme Court or by the state legislature. If victims' rights are to mean anything to everyone, they must apply not just for those families that seek revenge or retribution upon those who have done harm to their loved ones. These rights must also encompass the wishes of those, like the Autobees, who seek mercy on behalf of those who have committed crimes.

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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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