was convicted and sentenced to death in 1996 for the murder of four
employees at an Aurora Chuck E. Cheese's restaurant.
Chuck E. Cheese Killer Gets A Stay Of Execution
Feb 22, 2008
The man sentenced to death for murdering four people
at a restaurant in Aurora has been granted a temporary stay of execution.
Nathan Dunlap, 33, claims he didn't get a fair trial
because his legal team was ineffective.
On Friday a U.S. district court judge granted the
stay while Dunlap's case is reviewed. That could take nearly a year.
Dunlap was convicted of first-degree murder,
attempted murder and other charges for shooting five people at a Chuck
E. Cheese restaurant in Aurora in December 1993.
Four victims died. The survivor identified Dunlap as
He was sentenced to death 3 years after the crime.
The Colorado Supreme Court has upheld Dunlap's
conviction and sentence three times.
The U.S. Supreme Court refused to hear the case last
Another Appeal Denied In Chuck E.
Colorado Supreme Court Denies Dunlap's Appeal In
By Dan Elliott, AP Writer - cbs4denver.com
May 14, 2007
A man convicted in a 1993 shooting rampage that left
four people dead in a pizza restaurant lost another round in his battle
to avoid execution Monday.
The Colorado Supreme Court rejected Nathan Dunlap's
claim that his legal defense was ineffective, and the justices ordered
the trial court to set a date for his execution.
Dunlap's attorney, Phillip Cherner, said he would ask
the court to reconsider. If that fails, Cherner said, he will launch an
appeal through the federal courts.
"We believe our appeal has merit and we will
eventually prevail," he said.
Nate Strauch, a spokesman for Attorney General John
Suthers, said the ruling means Dunlap has exhausted his state appeals.
"We're happy to see the case moving toward the
resolution of the jury's well-deserved verdict," Strauch said.
Dunlap, now 33, was convicted in 1996 of shooting
five people at a Chuck E. Cheese restaurant in suburban Aurora. Four of
the victims died.
The state Supreme Court upheld his death sentence in
2001. In 2004, Dunlap began another appeal, claiming his representation
was inadequate. The court rejected that claim Monday.
"We dissolve the stay of execution and remand this
case back to the trial court to set a date for imposition of the death
sentence," the justices said in their ruling.
Dunlap was convicted of first-degree murder,
attempted murder, robbery, theft and burglary.
Killed in the rampage were Margaret Kohlberg, 50; Ben
Grant, 17; Colleen O'Conner, 17; and Sylvia Crowell, 19. Bobby Stephens
survived and later identified Dunlap as the murderer.
The only other prisoner on Colorado's death row is
Edward Montour Jr., 39, convicted of murder in the death of a guard at
the Limon prison in October 2002.
Both Dunlap and Montour are held in the Colorado
State Penitentiary in Canon City.
March 9, 1999
sentence of Chuck E Cheese mass murderer Nathan Dunlap was upheld by a
unanimous Colorado Supreme Court, which called the evidence against him
"In the final analysis, it is the horror of the crime
itself that looms large in our (decision)," Justice Rebecca Kourlis
wrote. "Dunlap killed four people and seriously wounded a fifth. He
did it without provocation or cause, but rather with a brutal contempt
for human life."
A jury convicted Dunlap in 1996
for the Dec. 14, 1993, shootings - the worst multiple homicide in Aurora
at the time. He received four verdicts of death.
restaurant employees Colleen O'Connor, 17; Sylvia Crowell, 19; Benjamin
Grant, 17; and night manager Marge Kohlberg, 50. Another employee Bobby
Stevens, 22, shot point-blank in the face, survived and testified
The then 19-year-old Dunlap began
working as a cook at the Chuck E. Cheese in May 1993 but was fired over
whether he would work extra hours. Dunlap was angry and felt his
supervisor had made a fool of him. Later that summer, Dunlap told a
former co-worker he planned to "get even."
He talked about
robbing Chuck E Cheese's and killing his former supervisor. And on the
day of the shootings, while playing basketball with friends, Dunlap said
he had decided to "go to Chuck E Cheese, kill them all and take the
The night of the killings Dunlap entered the restaurant,
ordered a sandwich, played a video game and then hid in the restroom
Gunman Kills 4 Workers at Colorado
The New York Times
Thursday, December 16, 1993
An after-hours shooting rampage at a family
restaurant on Tuesday left four employees dead, and today a recently
dismissed kitchen worker was arrested. A fifth employee was shot in the
jaw but managed to escape and alert the police.
The former employee, Nathan Dunlap, 19, was being
held for investigation of four counts of first-degree murder in the
slayings at the Chuck E Cheese restaurant in this Denver suburb. The
victims were shot in the head.
"It appears he may have held a grudge over his firing,"
said Mike Stiers, chief of the Aurora Police Investigative Division.
The authorities said Mr. Dunlap was dismissed about a
week ago and recently got a job at a fast-food restaurant near Chuck E
Cheese. The reason for the dismissal was not known.
Investigators recovered a small-caliber semi-automatic
handgun, Mr. Stiers said.
The victims were the night manager, Margaret Kohlbert,
50; Colleen O'Connor, 17; Sylvia Crowell, 19, and Benjamin Grant, 17.
Bobby Stevens, 20, was in fair condition at Denver General Hospital,
after he fled the restaurant and ran to nearby apartments to call the
The gunman entered the restaurant just after closing
Tuesday night, when employees were cleaning up. He confronted and shot
two workers, shot a third one in a hallway, shot and wounded Mr. Stevens
in the kitchen, and shot Ms. Kohlbert in her office in the rear.
Chuck E Cheese is a popular family eating place and
entertainment center in the London Square shopping center that serves a
nearby upper-middle-class neighborhood. The neighborhood has little
"This is just a tragic, tragic example of what can
happen if something is not done about the level of violence existing
with these kids today," Mr. Stiers said.
Shannon McCurley, 16, a restaurant employee, said
that Mr. Dunlap frequently came by the restaurant to say hello, but that
he was bitter over his dismissal.
"We'd all fight, we didn't agree on everything, but
nothing really serious," she said."Nothing like this."
Fifteen years after the Chuck E.
Cheese massacre in Aurora, the shooter is still on death row. Nathan
Dunlap's only hope that his life might be spared is Colorado Governor
By Patrick Doyle and
Natasha Gardner - 5280.com
Fifty-year-old Margaret Kohlberg watched the clock.
It was nearly 10 p.m. on a Tuesday night in December 1993, and her crew
was antsy. A family birthday party had stayed late at the Aurora Chuck
E. Cheese, and the parents were just now bundling up their two kids
against the winter cold. Margaret headed back to the office to start
tallying the night's receipts. She'd go home in a few minutes, after she
got her teenage workers out the door.
Sylvia Crowell started cleaning the salad bar. The
19-year-old was balancing a full-time work schedule and classes at Metro
State, but that day she'd gone shopping with her best friend, Carole
Richins, before they'd clocked in for the night shift at the pizzeria.
Carole had just left, shouting, "I love you!" over the restaurant's
cacophony of arcade games and animated toys.
Nearby, Ben Grant, a high school junior, turned on
the vacuum, and its whirring helped drown out the noise. He tossed the
cord behind him, absentmindedly sucking up pizza crumbs and food left
crushed into the carpet by the kids. Colleen O'Connor was helping close
that night too, but she was distracted. The 17-year-old had called her
mom during a break three hours before and found out her parents were
giving her a car.
In the kitchen, Bobby Stephens scrubbed away. He
hadn't been scheduled to work that day, but he needed the cash. Just 20,
he had a seven-month-old baby boy at home. With the holidays coming up,
he had stopped in to ask for extra hours, and they had put him to work.
The small crew continued closing, the routine so familiar that they
moved with the robotic motions of the mechanized creatures that danced,
twirled, and sang around them.
Sylvia didn't even hear the intruder come up behind
her. Silently, he raised the .25-caliber semiautomatic pistol to her
left ear and squeezed.
As she fell, he looked away. He couldn't stomach the
sight of gore and blood. He moved quickly to where Ben was vacuuming.
The bullet entered near Ben's eye, lodging in his
brain as he fell to the ground.
Colleen saw him coming. He was a boy with a gun; he
had too-big brown eyes above hollowed cheeks and a mouth that twisted in
a half-smile. Kneeling in front of him, she begged for her life, raising
her arms, her fists clenched, as he held a gun just 18 inches from her
"Don't shoot," she cried. "I won't tell."
"I have to," the shooter said as he pulled the
Inside the kitchen, Bobby heard the three sharp
cracks, but he didn't stop working. He figured it was probably Sylvia or
Colleen popping balloons. He didn't have time to think about it much
before the kid with the gun barged into the kitchen. Tall but gaunt,
like a boy who's not quite yet a man, the intruder was wearing a jacket,
gloves with holes cut out at the knuckles, and a baseball cap perched
backward on his head. Stunned, Bobby started to say hello. Half-smirking,
the shooter raised his arm.
The bullet entered Bobby's jaw and sent him sprawling
to the floor. It felt like a burn, a cigarette scorching his skin, and
then like a baseball bat slamming into his face. He watched as a pair of
black high-top shoes headed toward the office. Margaret was still
counting the evening receipts. She did what he asked and opened the safe.
The last words she heard were "thank you."
He shot her in the ear. Then he grabbed her bag,
filled it with game tokens, key chains, cards, $1,591 and change.
He shot her again, in the other ear, just to make
Six .25-caliber shell casings dotted the floor. The
shooting spree couldn't have lasted more than five minutes.
It would only take a few hours after the Chuck E.
Cheese massacre for police to track down the shooter: 19-year-old Nathan
Jerard Dunlap was at his girlfriend's apartment. The couple was having
sex when his pager went off with a message from his mom, who was
relaying a message from the cops. The investigators had heard he ate
dinner at the restaurant that night and wanted to ask him a few
questions. Dunlap agreed to meet. Before returning to his home, an
apartment he shared with his mother, the teenager washed his hands with
hydrogen peroxide and jumped in the shower, then stashed some of the
money under the freezer. Back at his home, the police questioned him,
swabbed his hands for gunshot residue, and took his clothes into
evidence. About 12 hours after the murders the police returned to
Dunlap's home and cuffed and arrested the teen.
A NEW DISTRICT ATTORNEY NAMED BILL RITTER
HEARS THE NEWS
When Denver District Attorney Bill Ritter woke up the
next morning, reports of the Chuck E. Cheese killings were all over the
local and national news. It was beginning to seem as if the year—and the
violence—were never going to end. The wave of violence started in
January, when a robber murdered a grandmother in her home in Park Hill.
In May, a 10-month-old was nearly killed by a stray bullet at the Denver
Zoo; in July, two gang members robbed and beat a woman and killed her
husband in Capitol Hill. The local media dubbed it the "Summer of
Violence" and ran death totals on the front pages. In Colorado, the
Christmastime bloodbath at a Chuck E. Cheese was a macabre but fitting
end to the year.
The violence in the city was a microcosm of the crime
epidemic spreading around the nation. And what made the violence all the
more disturbing, aside from the frequency and depravity, was how young
the killers were. Often the offenders were trigger-happy gangbangers.
Driving the violence, so went the consensus in the law enforcement
community, was crack. As the drugs went, so did the gangs, and by the
early 1990s, both had a chokehold on America's inner cities. Juvenile
murder rates had tripled nationally. John Dilulio, a political scientist
at the Brookings Institution, even coined a name for this new breed of
young criminals: "superpredators." The public wanted justice—or maybe
vengeance—with 80 percent of Americans supporting the death penalty. Law
enforcement, prosecutors, and especially politicians quickly took up the
Michael Dukakis' 1988 Democratic presidential
campaign was derailed when Republicans started running attack ads
featuring unnerving images of Willie Horton, an African-American rapist.
While Dukakis was governor of Massachusetts, Horton had been granted a
weekend furlough from prison, and he raped again. Congressman Newt
Gingrich helped the GOP take both the House and the Senate in 1994 with
a "Contract with America" that promised increased funding for prison
construction, tougher sentencing, and a stronger death-penalty law. In
that political climate, even progressive Democrats—at least the most
successful ones—were seizing on the political power of the death penalty.
In 1992, an Arkansas governor named Bill Clinton received a clemency
petition on behalf of Rickey Ray Rector, a mentally retarded man on
death row. (After killing a police officer, Rector had shot himself in
the head, effectively lobotomizing himself.) Clinton had long been
opposed to the death penalty, but now he was running for president of
the United States. Clinton denied Rector's petition. It took the
executioner an hour to find the right vein.
Like a young Bill Clinton, the young Bill Ritter had
what he described as "some very strong reservations" about the death
penalty. It was not so much a political view as it was a belief rooted
in his religion. Ritter was born into a Catholic family of 12 children,
all raised on a five-acre farm in what is now Aurora. The Ritters took
their faith seriously, and perhaps none more so than Bill, who spent two
years at a Catholic high school seminary in Texas before deciding that
he didn't want to become a priest. It was then, in the early 1980s, that
a career in law as a Denver deputy district attorney presented itself as
a suitable calling. After all, wasn't the pursuit of justice a way of
serving a just and merciful God?
Although he was a Democrat, Ritter was pro-life, his
church's Catholic doctrine advocating for the sanctity of life for the
born and unborn. Ritter opposed abortion, with exceptions—rape, incest,
and health of the mother—and had publicly expressed his "personal doubts"
about the death penalty. And Ritter's deeply rooted convictions
threatened to undermine a tremendous professional opportunity at the
beginning of the summer of 1993, when Governor Roy Romer was looking for
a district attorney. The current DA, Norm Early, was burned out and
wanted to retire; a search committee had recommended that the governor
consider Ritter for the post. Considering the political climate, one of
the things Romer needed to know was whether Ritter would pursue a death-penalty
sentence to the end. Ritter assured the governor he would; that he would
subjugate his "personal doubts" to the law of the state and the beliefs
of the voters, and Romer appointed him DA.
Ritter didn't have that much to worry about when it
came to actually reconciling his faith's doctrine of protecting life
with his professional commitment to implementing a death sentence.
Colorado hadn't executed anyone in more than 25 years. Out of 77
potential capital punishment cases, only seven men had been sentenced to
death across the state, and none, so far, had been executed. More
frequently, juries, stymied by one reluctant juror, hadn't been willing
to execute. When the two gang members killed that husband in Capitol
Hill, only weeks after DA Ritter took office, it seemed like he would
face his first test. The court of public opinion wanted a life for a
life. Legally, though, there was no way Ritter's office could secure a
death sentence in the case. Police weren't sure which gang member had
pulled the trigger in Capitol Hill. And because the Chuck E. Cheese
murders happened in Aurora, outside the Denver DA's jurisdiction, Ritter
wouldn't have to consider the Nathan Dunlap matter either. At least not
In his more than 25 years in office, Arapahoe County
District Attorney Robert Gallagher had never won a death-penalty
conviction. But two years after the 1993 Chuck E. Cheese murders, the
voters who'd elected him to office term after term were still enraged.
The slayings had made national news. The former Arkansas governor who'd
executed Rector, the mentally disabled con, was now President Bill
Clinton, and President Clinton had used the Chuck E. Cheese killings to
reinforce his tough-on-crime message. The case had generated so much
interest, stoked the fires of the potential jury pool in Aurora, that
the court decided Dunlap ought to be tried elsewhere in order to find a
jury of objective peers.
The rare change-of-venue order moved the case some 60
miles away to Colorado Springs. Arapahoe County DA Gallagher entrusted
the prosecution of the capital case to his heir apparent, Jim Peters.
Because Dunlap couldn't afford an attorney, the court appointed Forrest
"Boogie" Lewis and Steven Gayle to defend him. Both attorneys had won
life-without-parole convictions for clients in death-penalty trials. It
appeared they understood that their job was twofold: persuade a jury
that there was reasonable doubt of Dunlap's guilt, and, if necessary, do
their best to secure the most lenient sentence.
It came as no surprise that Peters presented a
remarkably strong case against Dunlap. The evidence was overwhelming.
Bobby Stephens had survived the bloodbath—a small scar on his cheek the
only visible reminder of that night—and testified that there was no
doubt in his mind that Dunlap was the one who had killed his friends and
coworkers. Using fancy new slideshow technology, prosecutors flipped
gruesome pictures of murdered teenagers before the jury. They put the
coroner on the stand; he plunged knitting needle-like rods into
Styrofoam heads to show how a bullet moved through skulls and brains.
The prosecution lined these macabre models on a table in the courtroom.
A detective even turned on Ben's vacuum cleaner so jurors could hear its
The prosecution presented to the jury a narrative of
Dunlap's biography that cast him perfectly, exclusively, as one of those
superpredators. At 15, Nathan had committed several robberies, first
using a golf club as a weapon and later guns. He ended up in juvenile
court, which offered him the opportunity to turn his life around.
Instead, he sold drugs off and on, and hung out with a wannabe gang that
robbed places for quick hits of cash. In 1993 alone, he was arrested
five times on misdemeanor charges. Until that December night at Chuck E.
Cheese. The lead prosecutor Peters and his team pointed out that since
Dunlap had been in jail, awaiting trial, he had torn a leg off a metal
desk, sharpened it, and began to scrape away at the window ledge in his
cell. They took pictures of Dunlap's new jailhouse tattoos: One was "Crazy
Horse," the new nickname he'd embraced; the other was a smoking handgun
with the phrase "By Any Means Necessary."
The exclamation point on the prosecution's case was
Dunlap's own words. Peters informed the jurors that Dunlap had confessed
to fellow inmates, to a jail deputy, to friends—many of whom had
testified against him in exchange for reduced sentences—and to a trusted
mentor. As to the question of motive: Why did Dunlap go on his murderous
spree? What reason could there be? The case the prosecution so
commendably presented to the jury, in short, went like this: Dunlap
entered the Chuck E. Cheese that night, ordered a ham-and-cheese
sandwich, played a video game called Hogan's Alley where he shot bad
guys; when the game was over, he hid in the bathroom until closing, then
emerged and executed four people for real—because he wanted revenge for
being fired from his "doughmaster" job at the same restaurant months
before. Peters even put Dunlap's mother, Carol, on the stand expecting
she would plead the Fifth—which she did—thus leaving the jury with the
impression that Dunlap's own mother couldn't muster a word on her son's
The proceedings were then turned over to Dunlap's
defense. Throughout the prosecution's show, Lewis and Gayle, who
declined to comment for this story, had offered few objections, and as
they now made Dunlap's case offered no rebuttals. Dunlap wanted to
testify, but his attorneys advised him against it. In fact, Lewis and
Gayle did not call a witness—they did not have a single person testify
on their client's behalf—and then they rested. On February 26, 1996, the
jury, who had been sequestered in a local hotel, took just three-and-a-half
hours to find Dunlap guilty.
MAKES AN ANNOUNCEMENT
Seven months after Nathan Dunlap was convicted, Bill
Ritter was in the midst of his reelection campaign for Denver district
attorney. Taking over for Norm Early during the Summer of Violence,
Ritter now had been DA for three years. He was well liked and respected
by his colleagues, and was also highly regarded by the Colorado legal
community. Craig Silverman, a former prosecutor and former law school
classmate of Ritter's, was challenging him—and he kept telling anyone
who would listen that Bill Ritter was soft on crime.
Ritter and Silverman had been friends at the
University of Colorado Law School, played intramural sports together,
were sworn in as lawyers together, and were hired on at the DA's office
together. Even after Ritter became district attorney, their relationship
remained strong. Ritter appointed Silverman to handle some of the
tougher cases in Denver during the Summer of Violence. The two men
remained close until early 1996, when Pat Schroeder, the longtime Denver
congresswoman, decided to step down. Democrats scrambled. Silverman,
weighing a run, talked to his old pal Ritter about an endorsement. The
DA refused. He was between a political rock and a hard place. Diana
DeGette, the Colorado representative who had helped select Ritter as
district attorney for Governor Romer, had already entered the race; she
was the party establishment's pick. Silverman resigned from the DA's
office in order to challenge Ritter for the DA slot. Silverman
immediately attacked Ritter's record on crime.
As DA, Ritter had focused on both criminal
prosecution and prevention. Instead of jailing nonviolent drug felons,
he created a separate court focused on rehabilitation and probation—a
proactive system designed to stop repeat offenders, to keep them from
spiraling into the gang violence spreading across Denver and America.
The drug court had become a national model, though it was just one of
his many prevention programs, including a courtrooms-to-classrooms
program and a juvenile-diversion program. Ritter had created a system of
second chances and forgiveness to fulfill the motto taught to him by his
first boss, former Denver District Attorney Dale Tooley: Always do
justice. It is a sentiment that also lies at the core of Ritter's faith.
At a debate held at the City Club of Denver in
September of 1996, Silverman started criticizing Ritter's death-penalty
policy. Ritter, he told the crowd, was against capital punishment. Need
proof? He hadn't prosecuted a single death-penalty case during his three
years as DA—not even against Jon Morris, who had raped and killed a five-year-old
girl in 1995. "Ask him, when is Jon Morris set for trial?" Silverman
said. "Will Jon Morris ever be set for trial? This guy is in the state
hospital. It's unlikely a trial date will be set any time soon. And Bill
Ritter knows that, so that makes it convenient for him to seek the death
penalty against him." Ritter had planned for the attack. In response, on
the spot, he made an announcement: Earlier that day, he and his team of
prosecutors had set a date for the death-penalty trial against Jon
Morris. The case would begin February 10. Standing at the confluence of
politics and the law, Ritter had used a political debate to announce
that he was aiming for an execution.
"KILL ME RIGHT
If anyone watching the Dunlap trial had thought that
maybe his defense attorneys, Lewis and Gayle, had kept their powder dry
until the sentencing phase; that maybe they'd made the calculated risk
to almost stipulate guilt in order to hold onto a strategic trump card
that would convince the jury to spare Dunlap's life and instead sentence
him to life in prison—if anyone had been thinking that, they were wrong.
In order to win the death sentence the people of
Arapahoe County sought, prosecutor Peters needed to persuade the jurors
there was an "aggravating" factor, essentially a detail of the crime
that made Dunlap's murders especially heinous. Just one aggravating
factor. Peters presented 28, including the fact that Dunlap had a prior
felony, the fact he committed a robbery during the killing spree, and
the fact that he lay in wait in the restroom before the shootings.
During the sentencing phase of death-penalty hearings, prosecutors often
present many aggravating factors hoping to land the one that secures a
sentence of death.
The defense's job at the sentencing phase is a bit
more nebulous. If the defense could get one juror to disbelieve the
prosecution's assertion that Dunlap was a superpredator who coldly
murdered four people for something as simple as revenge for getting
fired from his fast-food job; if they could make the jurors see that it
wasn't that simple but rather there were other more complex factors, "mitigating"
factors that do not excuse, but might explain, how a 19-year-old could
execute four people and then go have sex with his girlfriend, then
Dunlap's lawyers would save his life.
Dunlap has described his family life as "ideal,
perfect, very wonderful." In reality, however, it was quite something
else. He and at least one of his two siblings, an older sister, Adinea,
were abused, often without provocation, by both parents. His father, a
nearly 400-pound Baptist minister named Jerry Dunlap, had married Carol
six months after Nathan was born—and brutalized the young child. One
time he threw Nathan down a flight of stairs. Another time he threatened
to beat him with a heavy metal copyholder. There also would be testimony
of Jerry pounding on his son in a Burger King bathroom and slamming
Dunlap into a locker. Dunlap's sister, Adinea, tried to break up the
fights and steer her brother clear of Jerry when the minister was in one
of his moods. But she was fighting battles of her own.
Over the years, while Jerry Dunlap
physically abused Nathan, he wreaked a different type of havoc on Adinea.
Nathan realized this one day when he descended into the basement of the
family's home and found his father sexually assaulting her. Always
trying to protect her brother, Adinea pretended that they were only "playing."
But the damage was done. After that day, Adinea now says, "Jerry's abuse
of Nathan took on a vengeful intensity." At home, Dunlap took the blows
of this colossal man; but out on Aurora's streets he was the one
inflicting the violence. Petty crimes turned into more serious robberies.
He was just 15 and becoming increasingly violent when a social worker
told him that Jerry—the only father he'd ever known, the father whose
name he carried, the father who beat him, the father who was sexually
assaulting his sister—was not his biological father.
Dunlap's attorneys laid these facts before the jury
without, again, calling so much as a single expert to attempt to assign
them meaning. So what if the likes of the Sentencing Project, a criminal
justice advocacy group, reports that exposure to violence at a young age
increases an adolescent's propensity for violence by as much as 40
percent? What the jurors heard was a sad story, but one easily dismissed
as irrelevant cliché. Especially considering the closing statement from
Dunlap's own attorney. "How can anyone be so cold?" Forrest Lewis said.
"How can anyone be so cruel? What road can anyone go down that could
take them to the point where they could make the choices that were made
at Chuck E. Cheese? I still don't know.... If you choose to kill my
client under the facts of this case, I will respect your decision and
you will hear not one word of criticism of you from me."
The weak defense paled, too, in comparison to what
the victims' families said in court. They had been warned not to talk
directly to the defendant, but they couldn't help it. "Nathan Dunlap
killed us all," one of Margaret's daughters said. "We just didn't die."
Ben Grant's mother phoned in—she'd left the state after her son's murder—to
say, "Maybe now you understand the fear that was in my son's eyes when
you pointed a gun at his head." Dunlap sat quietly, listening, until
Sylvia's brother confronted him, saying that the murders were racially
motivated (all of the victims were white). Then something in Dunlap
broke, or broke more. He started to rave and rant in a three-and-a-half-minute
monologue that left him sobbing uncontrollably, "Kill me right now. I
have [had] enough of this motherfucking shit. You can take me to the
motherfucking little chair and do what the fuck you want." Dunlap was
given two death sentences for every life he'd taken.
On November 18, 1997, 19-year-old Nathan Thill
approached a Senegalese immigrant named Oumar Dia at a Denver bus stop.
It was nearly midnight, and Thill, a white supremacist, had been
drinking for several hours. He pulled a gun, pointed it at Dia, and
asked him, "Are you ready to die for being a nigger?" Thill shot Dia in
the chest and the neck, killing him. Thill noticed bystander Jeannie
VanVelkinburgh. He couldn't have a witness to the murder, so he shot her
too, leaving her paralyzed.
Thill was arrested quickly, and confessed during a
90-minute interview with District Attorney Bill Ritter. In a subsequent
interview with a Channel 7 reporter, Thill said, "I see a black guy at
the bus stop and I kind of decided he didn't belong where he was at and
how easy it would be to take him out right there. In a war, anybody
caught in an enemy uniform should be taken out."
Denver was outraged by the hate-filled murder, and
the fact that innocent victims had been gunned down; both Dia and
VanVelkinburgh had just gotten off work and were headed home. Ritter
told the media that he'd seek the death penalty. As with the Dunlap
case, the court of public opinion in Denver had already rendered its
verdict, and the court felt compelled to order a change of venue—to the
city of Pueblo—in the Thill matter so he could face a fair jury.
The prosecution presented a straightforward case:
Thill, an admitted skinhead, had killed Dia because he was black. Thill
had attempted to kill VanVelkinburgh because she was a witness to the
murder. The district attorneys showed the jury the taped TV confession.
VanVelkinburgh, who was paralyzed and couldn't be in court, offered a
taped deposition as the prosecutors' star witness. Thill was guilty,
said the district attorneys. He deserved to die.
The court appointed lawyer Sharlene Reynolds to head
Thill's defense. She had already successfully defended another death-penalty
case: In 1998, she convinced a jury that Jon Morris—the man who'd raped
and killed a five-year-old girl—hadn't intended to kill the child and
had been out of his mind at the time. Reynolds used the same strategy in
this case: Thill had killed Dia, but Thill wasn't mentally stable and
was incapable of forming the intent needed for first-degree murder.
The defense steamrolled the prosecution. Reynolds
presented more than 5,000 pages of evidence cataloging Thill's
terrifying mental instability: He was beaten by his father before he was
a year old, began receiving mental health care at five years old,
started attempting suicide at age eight, was put on strong psychiatric
medicine before he was 10, and spent most of his teen years in group
homes and mental hospitals. The defense hired psychologist Suzanne
Bernhard to testify that Thill—whom she had evaluated several times
before the trial and whose medical records she had received—was in a
manic rage from his bipolar disorder at the time of the murder. He
couldn't be guilty of first-degree murder if he was in that state; the
defense argued Thill deserved a conviction of second-degree murder,
which would spare his life.
After two days of deliberation, the jury was
deadlocked. Ten jurors wanted to convict Thill of first-degree murder,
but there were two reluctant holdouts. Tom Mitscher, one of the jurors,
later described Thill as "out in left field somewhere." With a jury
unable to agree, the judge declared a mistrial. Instead of retrying the
case, Bill Ritter and the DA's office gave the defense an offer: If
Thill would plead guilty to first-degree murder, they wouldn't seek the
death penalty. The defense agreed, despite the fact they had just argued
against a first-degree conviction. They had accomplished their narrow
goal: saving Thill's life. "Nathan Thill with a million dollars couldn't
have found better lawyers," Larry Pozner, a well-known defense attorney,
told the Rocky Mountain News, "and likely would have found worse."
WHAT THE JURY
The correctional officers wouldn't stop taunting
Dunlap. It was October 13, 1997, and on that day the state of Colorado
was executing Gary Lee Davis, a convicted rapist and murderer. He was
the first man whom the state had put to death in 30 years. The guards
reminded Dunlap that his last days were looming; that he, too, would be
led to a table, where IVs would be threaded into his veins, and he would
wait as his heart pushed three poisons into his body. The first would
render him unconscious. The second would paralyze him. The final, lethal
poison would stop his heart. Two short minutes later, he would be dead.
As Dunlap waited in his cell, paused between life and death, he smeared
feces on his mouth. It was a manic breakdown, doctors realized, and one
that would lead to a mental-health diagnosis: Nathan Dunlap has bipolar
Characterized by episodic mood swings between two
poles—mania and depression—bipolar disorder can take up to 10 years or
more to diagnose. A pattern of mental shifts must be established, but
the rate at which a person cycles between the poles varies dramatically.
If a doctor evaluates a person between shifts, identifying the symptoms—sexual
promiscuity, recklessness, delusions of grandeur, to name a few—is a
Dunlap, as doctors would piece together, had an
earlier manic episode, on Valentine's Day in 1994. Normally a quiet
prisoner, something, it seemed, was disturbingly wrong with Dunlap, who
was then awaiting his criminal trial. A guard watched as he quietly read
Bible passages at one moment and then ran to the window screaming
obscenities at the next. He was moved into a rubber-walled room and
placed on suicide watch as his pandemonium continued. He would tear off
his clothes and spread feces on his body and the walls. He was taken to
the Colorado Mental Health Institute in Pueblo, looking emaciated,
scared, and wild. The Arapahoe DA's office had been preparing its case
for more than a year, but this breakdown could have changed everything:
Was Nathan even sane enough to stand trial? A two-week stay turned into
a nearly five-month evaluation. A defense expert found that during his
stay in Pueblo, Dunlap showed signs of psychosis at least 10 percent of
the time. But the state's doctor was convinced Dunlap was faking and
told the court so. On July 8, 1994, Dunlap was deemed competent to stand
trial. And despite their own expert's odd evaluation, the defense
avoided discussing his mental health or his unstable behavior at the
mental health institute in Pueblo during the trial.
Bipolar disorder has a strong hereditary link.
Children of a bipolar parent have a 14 percent chance—the rest of the
population only has a 1 to 3 percent chance—of developing the disorder.
In Nathan's family, his maternal grandfather, an uncle, and his mother,
Carol, have all been diagnosed with schizophrenia or bipolar disorder.
Carol's struggle for a diagnosis was particularly turbulent, resulting
in a half-dozen hospital stays that took her in and out of her childrens'
lives. Shortly after Nathan's birth, she was hospitalized in Waukegan,
Illinois, and Nathan was sent with Adinea to a foster home. By the time
he was two, the kids were back with Carol and on the move, stopping in
Michigan for a time, and eventually ending up in Colorado in 1984.
Nathan was 10.
A year or two later, according to court documents,
Carol was formally diagnosed, but meanwhile she went through unmedicated
periods when her symptoms would return. Pre- and post-diagnosis, her
manic swings were accompanied by corporal violence and left her
hypersexualized. She'd walk around the house naked, stay up cleaning and
moving furniture for days, and take a dozen baths in a 24-hour period.
Nathan would sometimes wake at 3 a.m. to find his mother shrieking,
raving, and stacking their belongings on the lawn. When Dunlap was an
infant, she once discarded him in the trash. She was hospitalized for
trying to hurt Dunlap's younger brother, Garland, and has admitted that
she hated Adinea since conception. For her three young children, living
with Carol was a roller coaster of abandonment and abuse.
By 1989, things had changed. Adinea had moved out of
the house and her lanky, all-elbows-and-knees brother was transforming.
As his robberies escalated—antisocial behavior that a social worker saw
as a cry for help—and Dunlap was shuttled between juvenile detention
centers, Carol started to wonder if her young son wasn't suffering from
the same mental-health demons she struggled with. A 1989 evaluation
while at a juvenile treatment center showed signs of a conduct or
thought disorder. Another examination showed he was depressed. A
psychiatrist thought he might have oppositional disorder, something akin
to bipolar disorder. Again and again, Dunlap was sent home without a
diagnosis. He couldn't be suffering bipolar disorder. After all, he was
just a kid, and kids didn't get bipolar disorder.
Four years later, at the time of the Chuck E. Cheese
murders, it was still uncommon to look for symptoms of bipolar disorder
in children or teenagers. Doctors believed that these symptoms didn't
manifest until after puberty, usually around the age of 19 or 20. But
today, doctors do diagnose children and adolescents. When discovered in
an adult subject, it is difficult to work backward and see when their
symptoms first manifested. Early teenage evaluations may have missed
mood patterns or simply dismissed them as adolescent angst. Today, at
least three doctors have agreed that Dunlap suffers from the disorder,
but they all examined him after the 1996 trial and are unable to say
with any certainty whether he suffered manic episodes earlier than that.
Most important, they don't know if he suffered a manic break on December
14, 1993, the date of the Chuck E. Cheese murders.
David Lane, an attorney who has been an advisor to
Dunlap's defense, believes that Dunlap's trial attorneys should have
done much more to explore the mental-health issue—no matter how murky
the waters. While Dunlap's defense attorneys introduced Carol's mental
health, they presented no medical expert to discuss what, if any, impact
that had had on Dunlap. "It is really incumbent upon the defense to find
well-qualified doctors that have the credentials to be very credible
people to do the full evaluation and tell the jury the whole story,"
explains Lane. "That didn't happen in Nathan Dunlap's case."
There was at least one doctor who was ready to help
the defense—in fact, Dunlap's attorneys engaged her to do just that.
Psychiatrist Rebecca Barkhorn examined Dunlap at the time of the trial
and expected to testify in the penalty phase that he suffered from a
narcissistic personality disorder. But the defense never called her. The
defense also failed to provide her with Dunlap's complete charts from
his time in Pueblo, reports that she wouldn't see until years later
during the appeals process. When she did finally have the complete
picture of Nathan Dunlap's family history and medical histories, she
said that the information would have changed her original evaluation. If
she had known then what she knows now, Barkhorn says, she would have
testified that Dunlap suffered from bipolar disorder and that he had
suffered from the disorder since birth.
Compared to states like Texas and Florida, it's
incredibly difficult to secure a death sentence in Colorado. Until
recently, juries in Texas and Florida were given an unbalanced choice:
Sentence a heinous murderer for an execution, or he'd be up for parole
eventually. They often chose death. Texas legislators refused to pass
life-without-parole laws for years because capital punishment was an
easy and popular way to prove they were tough on crime. In the 1990s,
Texas, under the leadership of then-Governor George W. Bush, executed
more than 150 people; during the past 30 years, the state has been
responsible for more than a third of the executions in the United States.
Colorado has been far more judicious in its
application of capital punishment since the U.S. Supreme Court confirmed
that the death penalty was constitutional in 1976, after a brief
nationwide ban. While legislators have tinkered with the law in an
attempt to increase executions, Colorado juries have been given the
option to sentence a murderer to life in prison without parole since
1979. Juries like this option: They don't have to choose between life
and death. With a criminal forever locked behind bars, jurors can be
secure knowing that society is safe from harm, and that they did justice.
Currently, there are only two men on Colorado's death
row: Nathan Dunlap and Sir Mario Owens, both sentenced in Arapahoe
County. Owens got a death sentence in May for murdering a witness
scheduled to testify against a friend of Owens' in his drug trial. (He
also killed the witness's fiancée.) Owens has been on death row for
months; Dunlap has been there for 12 years, watching only one inmate,
Gary Lee Davis, be executed, while all of the other death-marked inmates
have been spilled back into life terms.
The reasons why one heinous murderer is sentenced to
death while another heinous murderer is sentenced to life has less to do
with the facts of the cases and more to do with happenstance and the
prevailing political winds. Consider the death sentences prosecuted in
Denver by DA Bill Ritter, who reserved capital-punishment trials for
cases where he "reasonably believed we could get it." Out of more than
600 murders in Denver between 1993 and 2004, Ritter prosecuted only
seven death-penalty cases for multiple homicides or a rape/murder
combination. All of the defendants faced overwhelming evidence that they
had committed horrible murders. Still, none of those men will be
Jon Morris was the man that Ritter
announced a trial date for during his reelection campaign. Morris had
kidnapped, raped, and murdered a five-year-old girl of family friends in
1995 and confessed to police that he put her dead body in a Dumpster.
Morris' defense team, led by public defender Sharlene Reynolds, argued
that because Morris had suffered childhood sexual and physical abuse, he
wasn't mentally stable. Reynolds would use a similar argument to later
get Nathan Thill a lifetime sentence. Though the jury ruled that Morris
was sane at the time of the murder, they were convinced he hadn't
intended to kill the young girl. He was given a life sentence.
A few years later, Ritter tried Jacques Richardson, a
serial rapist who had hog-tied a 34-year-old woman named Janey Benedict
during a robbery in 1997. Benedict suffocated from the ties. Richardson
confessed. Two years later, jurors ruled the murder was unintentional,
and Richardson was given a life term.
In other cases, Ritter instructed his prosecutors to
use the mere threat of a death-penalty trial in order to get a
conviction. Frightened, four men accused of murder—Cong Van Than, Omar
Ramirez, Samnang Prim, and Edward Robert Brown—pleaded guilty to first-degree
murder. Those tactics weren't unusual: Across the state, prosecutors
were happy to plea-bargain and avoid the cost, stress, and possible
public failure of securing a death sentence. District attorneys realized
that while the public, in theory, was eager to press executions, the
reality was that such a reaction was more visceral than just, and that
folks in the jury boxes were far more reluctant to exact an eye for an
eye, a life for a life.
Colorado legislators, eager to please the vengeance-happy
public, hadn't been sated. Denver wasn't sentencing anyone to death, and
the suburbs and rural parts of the state weren't doing much better. So,
in 1995, at the peak of capital punishment's groundswell, lawmakers
attempted to ramp up executions. With the explicit public support of
Ritter and other district attorneys around the state, legislators
created three-judge panels—not the juries that tried the case—to
determine death sentences. Still, legislators were stymied: even judges
wouldn't give death orders. A three-judge panel refused to execute Donta
Page—who brutally raped, robbed, and stabbed 24-year-old Peyton Tuthill
to death in 1999—claiming that his murder lacked "diabolical frenzy or
hellish subhuman behaviors." Page received a life sentence. The politics
of killing and the law continued to collide. In 2002, the U.S. Supreme
Court found that the death-sentencing scheme of the three-judge panels
cooked up by the Colorado legislators was unconstitutional, because
those panels do not represent a trial by peers. Five Colorado men on
death row had their sentences vacated; five murderers destined for
lethal injection received a reprieve because they had committed their
crimes while the legislature was tampering with the law.
As DA, Bill Ritter kept his word to Romer. He tried
death-penalty cases, but rarely, and only when he thought he could get
the ultimate conviction. As Ritter's tenure as district attorney
stretched into the 21st century, death-penalty cases became increasingly
rare in Colorado. Prosecutors had tried about a half-dozen death-penalty
cases annually in the late 1980s through the late 1990s, but by the time
Ritter stepped down in 2004, the state average had dropped to one or two
a year. Of course, those statistics provided no comfort to Dunlap.
THE KEY WORDS
ARE "INEFFECTIVE" AND "PROBABLY"
In the 15 years since Nathan Dunlap killed four
people at the Chuck E. Cheese, the state has spent more than $2 million
trying to kill him. The original trial had more than 21,000 pages of
discovery materials alone, listed more than 900 potential witnesses, and
lasted five weeks. Twelve Coloradans were asked to judge whether Dunlap
should live or die. But, if Nathan had a choice, no juror would have
been in a Colorado Springs courtroom trying to decide whether he should
be sent to death row. Just days after the first anniversary of his crime
in 1994, Nathan offered a plea bargain to the Arapahoe County DA's
office: If the state agreed not to kill him, Dunlap would plead guilty
to four charges of murder and accept his punishment. He would never
leave prison. But Gallagher's office was adamant; Dunlap would face
death. The offer was summarily rejected.
"If Nathan Dunlap [had been permitted to] plead
guilty to life without parole, he would have faded into obscurity years
ago," says David Lane. "He'd be doing his life sentence without the
possibility of parole. There would have been no trial that cost millions.
There would have been no appellate process that's cost millions. He
would have been another prisoner in the system." Instead, Nathan Dunlap
entered the languishing, confusing, stop-and-go, and enormously costly
appeals process. The Colorado Supreme Court rejected Nathan's first
appeal in 1999 and another in 2001. A year later, the U.S. Supreme Court
refused to look at the case.
Just over six years ago, in 2002, the original trial
court granted Dunlap's request for a Crim. P. 35(b) hearing to consider
the reduction of his sentences. The hearing lasted an unprecedented 52
days and gave Dunlap a second chance at presenting his case. This time,
Dunlap's new attorney, Philip Cherner, would call witnesses, put expert
after expert on the stand in front of the same Judge John Leopold that
had presided over the first trial. And there was something there. While
the court would only look at evidence relating to the time of the trial—meaning
that Dunlap's 1997 manic break was out—Cherner kept plugging away at
what a mess the original trial counsel had made. The court agreed, going
so far as to vacate two minor sentences and declaring that Dunlap's
trial counsel had been deficient.
It might have been a stunning decision—if it were not
for the caveats. Because of what the judge described as "overwhelming"
evidence of Dunlap's guilt, the court declared that the attorneys'
performance was "ineffective" but did not fall below a constitutionally
acceptable bar. The court went on to acknowledge that while more was
known about bipolar disorder, it was irrelevant. As for Dr. Barkhorn, "she
could have been a valuable asset for the defense if she had had all of
the [medical and mental-health] materials." Still, the court ruled that
while Dunlap could suffer from the disorder and Dr. Barkhorn's testimony
would have been helpful, the evidence "probably would have been
In other words, even though the defense was deficient,
experts weren't called to testify, and Dr. Barkhorn was not given full
access to Dunlap's record, the court found that no juror would have been
swayed. Effectively, the court guessed that even if these issues were
dealt with during the original trial, all 12 jurors would still have
voted for death. Nathan Dunlap appealed again, this time to the state's
highest court, the Colorado Supreme Court. If his trial counsel had been
deficient, so went the appellate argument, didn't that impact the jury?
In May 2007, the Colorado Supreme Court said no. And in a unanimous
decision the state Supreme Court struck down the lower court's
All of Nathan Dunlap's legal hopes have been
exhausted in the state courts. Today, prisoner No. 89148's appeals have
moved onto the U.S. District Court, where yet another team of attorneys—this
time a federal public defender, Madeline Cohen—will submit arguments
similar to those made time and again to the state judges. (Cohen
declined to comment for this story and advised Dunlap to not comment.)
While this legal phase will linger for as much as three or four years,
there's little to no reason to expect a different outcome, meaning
there's little to no chance the federal court will change Dunlap's death
sentence. Thus far, Dunlap has spent 180 months in prison; the troubled
boy is now a young dead man walking.
Perhaps the only time when Nathan Dunlap's life and
mind were not enveloped by chaos, abuse, and psychosis came just a few
months before that December night inside the Chuck E. Cheese. Dunlap's
mother and father, Carol and Jerry, were in Tennessee working on their
marriage, and Carol left Nathan in the care of a coworker and friend,
Benton Jordan. Jordan, a tall man with gray hair and earrings in both
ears, and who now works at a pottery store, watched Dunlap for two or
three weeks. "He was a good kid," Jordan says. "He had potential. He
just needed a stable home." Jordan tried to give him that by treating
him as if he were one of his own two kids, giving Dunlap chores and
watching over him.
That's exactly what Jordan was doing one day—watching
over Dunlap—when he saw a curious thing. He'd assigned Dunlap the age-old
summer chore of staining the deck. From a window, Jordan watched as the
kid dipped the brush in a polyurethane stain and began coating the
weathered boards. Dunlap worked for a while, then paused, scooped
something up in his hands, and gently set it aside, out of the way.
Jordan was intrigued. He asked Dunlap what it was that he had moved. A
beetle, Dunlap told him, had crawled into the path of his brush. Dunlap
said, "I put him on the side of the deck to keep from killing him."
At 19, when Colorado first caught a glimpse of Dunlap,
they wanted to kill him, says attorney Lane. But if they had seen him
when he was 10, they would have done anything to help him. "Nathan
Dunlap's odds are probably not very good," Lane says. "If justice will
be done, somebody should stand up and say, 'Hey—had this kid's entire
mental-health picture been adequately presented to the jury, there would
have been at least one juror that would have said, 'No, given his level
of mental illness, I'm not going to kill this kid.'"
The only person who can do that now is Governor Bill
It is, to say the very least, an odd circumstance
that Bill Ritter knows firsthand what it feels like to kill a human
being. As a young lawyer in the district attorney's office, Ritter
distinguished himself, rapidly rising through the ranks, and by 1987, at
the age of 30, was a chief deputy DA. Yet his commitment to his faith-based
convictions trumped careerism. Married with a one-year-old son, Ritter
left the DA's office, left Denver, left the country. With his young
family, he traveled to Zambia, Africa, where he worked as a Catholic
missionary, running a nutrition clinic. And one day, while Ritter was
driving down a road in a small truck, a man stepped into the truck's
path. Ritter tried to swerve, but the brakes hadn't caught in time. The
back of the truck swung into the man. Ritter rushed the man to a local
hospital, over the roads cratered with potholes and the shoulders
overflowing with pedestrians. At the hospital, the man died within a day.
The man's name, according to one of the very few
media reports of the incident, was Mushibi Katiki Chinyama. Chinyama had
a wife and a family; he was a good man, an innocent man, not unlike
Ritter, who himself had been a victim that day, a pawn in a terrible,
unforeseen accident. At first blush, one might understandably wonder
what Chinyama's death and Ritter's role in it have to do with Nathan
Dunlap's looming execution and Governor Ritter. One possible answer is
nothing at all. Then again, when one strips away the law and the
politics, the answer might be everything.
Public support for the death penalty has fallen as
violent crime has plummeted in the past decade. Murder rates are at
their lowest in Denver and nationally since the 1960s. John Dilulio, who
created the superpredator model, has retracted his idea, saying the data
to support the catch-all term is no longer there. Now, only about 47
percent of Americans support capital punishment, down from a high of 80
percent. When further questioned, many Americans are equally content
with life sentences for first-degree murder.
Meanwhile, undermining the supposed high bar of
evidence in the capital-punishment system, several death-row convicts
have seen their charges overturned through DNA evidence. In 2002, after
evidence in Illinois proved that 13 men on death row were innocent,
Republican Governor George Ryan commuted all 167 death-row sentences to
life without parole, citing the vast inequality and ineffectiveness of
the system. Ryan's mass commutation was exceptional, but other governors—both
Democrats and Republicans—have used their clemency privileges to commute
sentences. According to the Death Penalty Information Center, 244 men
escaped death courtesy of commutations. Many of the reasons were
humanitarian: The criminal had a history of mental illness or trauma, or
received ineffective legal counsel.
Despite the U.S. Supreme Court's 1976 ruling that
capital punishment is constitutional, 14 states have either banned or
never enacted death penalty laws. In 2007, abolishment gained some
traction in Colorado, when Rep. Paul Weissmann, a Democrat from
Louisville, proposed a bill that would take Colorado's death-penalty
expenditures—$4 million annually—and invest them in a cold-case homicide
unit to tackle unsolved murders. "Does it really make sense to spend [millions
of dollars] a year on something we never use?" Weissmann says. "Any
other program that costs us that kind of money and had the results that
we've had would have been gone a long time ago." A victims families'
advocacy group, Families of Homicide Victims and Missing Persons,
supported the bill. Because about 1,400 murders have gone unsolved in
the past 30 years in Colorado, and presently detectives only solve
around 60 percent of all homicides, supporters of the bill reasoned that
maybe solving murders and catching the killers might be a better use of
resources than spending money on the appeals and executions of a select
few convicted murders. Currently, there's not just a good chance you
won't be executed for murder in Colorado—there's a good chance you'll
get away with it.
At the time Weissmann presented his bill, Archbishop
Charles Chaput, the head of Ritter's Catholic church in Colorado,
weighed in. "The death penalty is a bad idea because it diminishes the
society that employs it," Chaput wrote in his column in the Denver
Catholic Register. "It doesn't deter capital crime. It doesn't bring
back the dead. It doesn't give anyone 'peace.' It sometimes kills the
innocent. It coarsens our own humanity and sense of justice. And while
both Scripture and long Catholic tradition do support the legitimacy of
capital punishment in extraordinary cases, the conditions that would
justify its use in developed countries like the United States almost
never exist." But lacking the support of Democrats like then-Speaker of
the House Andrew Romanoff and Governor Bill Ritter—the kind of Democrat
leaders needed to get behind a tough proposal—the bill died.
Governor Ritter's spokesperson repeatedly declined to
make the governor available for an interview for this story. Left
unexplained, it is surprising that Ritter supports capital punishment.
Ritter has said that if Roe v. Wade were overturned, he would sign a
bill banning abortion, provided it had exceptions for rape, incest, and
the mother's health—a bold statement for a Democrat. As governor, he
instituted a pragmatic, centrist agenda that looks at the cost-effectiveness
of government programs. He knows that some Coloradans support capital
punishment, but wilt under the life-or-death pressure inside the
courthouse. "Our experience in Denver, at least," Ritter told the
University of Colorado Law Review in the late 1990s, "is that some juror
or jurors...are not just awed by [the decision], they're overwhelmed by
Judging by the history of Nathan Dunlap's case, it's
most likely that his remaining appeals will drag on for a few more years,
that his legal hopes will be unsuccessful, and that either a first-term
or second-term Governor Bill Ritter will one day find a clemency
petition on his desk. Ritter will be faced with a choice: He could allow
Dunlap to be executed, or he could intercede and grant Dunlap life in
prison. However, as governor, Ritter has the constitutional power to
commute Dunlap's sentence now. Dunlap could do no more harm, maybe
receive some treatment for his mental illness, perhaps some counseling,
perhaps from a prison missionary.
If Ritter's "strong reservations" and "personal
doubts" about the death penalty motivate him to do so, he could also
help pass legislation abolishing capital punishment statewide. Such a
decision could affect his political future. Political observers see
Ritter, like Senator Ken Salazar and Montana Governor Brian Schweitzer,
as the kind of moderate Western politician that will be impervious to
the Republican attack machine and able to helm the future Democratic
Back in 1995, when the Colorado legislature was
weighing the idea of creating that three-judge panel to impose death
sentences rather than leaving it up to juries, Ritter gave the Rocky
Mountain News his thoughts on the subject. "It is a traumatic
decision to confront," Ritter said. "But the decision made in the voting
booth is so far removed from one a jury must make when they look across
the bar at a human being. Until you've been in that situation you can't
imagine the enormity of it."
Governor Ritter is not removed from the enormity of
Nathan Dunlap. And if the convicted killer is executed, it will be no
accident. The governor could wash his hands of the case, taking shelter
in the fact that Dunlap is not the innocent man young Ritter struck
while driving a truck on a Catholic service mission in Zambia. Or Ritter
could see Dunlap, like Chinyama, as a life. Regardless, unlike that
fatal tragedy in Zambia, this time around Ritter can see the human being
in his path.
Colorado Court of Appeals
The People of the State of
Nathan Jerard Dunlap, Defendant-Appellant.
Arapahoe County District Court No. 95CR605
Honorable John P. Leopold, Judge
SENTENCE AFFIRMED IN PART, REVERSED IN PART,
AND CASE REMANDED WITH DIRECTIONS
Opinion by: JUDGE CASEBOLT
Loeb and Criswell*, JJ., concur
Announced: April 30, 2009
John W. Suthers, Attorney General, Clemmie Parker
Engle, Senior Assistant Attorney General, Denver, Colorado, for
Philip A. Cherner, Denver, Colorado; Michael J. Heher,
Captain Cook, Hawaii, for Defendant-Appellant
*Sitting by assignment of the Chief Justice under
provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S.
Defendant, Nathan Jerard Dunlap, appeals the sentence
imposed on remand following reinstatement of his original convictions
for two counts of second degree kidnapping and one count each of
aggravated robbery and theft. Defendant asserts that his sentence,
originally imposed in 1996 and reimposed in 2006, is illegal, because
the sentencing court has never considered or fixed restitution. He
further contends that the illegality of the sentence means that his
conviction has never been final and that he may appeal anew his
conviction and sentence despite the fact that his conviction was
affirmed on direct appeal in 1998, and his request for collateral relief
was finally resolved in 2005. He also asserts that he is entitled to
application of decisions such as Blakely v. Washington, 542 U.S.
296 (2004); Crawford v. Washington, 541 U.S. 36 (2004); and
Apprendi v. New Jersey, 530 U.S. 466 (2000), in pursuing a new
We agree that defendant’s sentence is illegal to the
extent it does not reflect consideration and fixing of restitution, and
we remand with directions to the trial court to consider and fix
restitution and amend the mittimus accordingly. However, we reject
defendant’s remaining assertions and conclude that the illegality of his
sentence does not affect the finality of his conviction and the denial
of relief on collateral review in this case.
Based on his November 1993 robbery of a restaurant, a
jury convicted defendant of the noted charges and the trial court
sentenced him to consecutive terms of thirty-five years for the class
two felony of second degree kidnapping, twenty years for the class three
felony of second degree kidnapping, and twenty years for aggravated
robbery, and a concurrent six-year term for theft. Although the
presentence report stated that $1,400 in restitution was due, the trial
court did not mention restitution in imposing sentence. A division of
this court affirmed the conviction on direct appeal, People v. Dunlap,
(Colo. App. No. 96CA0329, Feb. 5, 1998) (not published pursuant to
C.A.R. 35(f)) (Dunlap I), and the supreme court denied certiorari.
In 1999, defendant filed a pro se Crim. P. 35(c)
motion for postconviction relief. Following the filing of an amended
motion by appointed counsel, the trial court granted part of the motion,
reduced the felony classifications for the two kidnapping convictions,
and resentenced defendant in 2001 to ten years of imprisonment on those
counts. Both defendant and the prosecution appealed.
As relevant here, a division of this court concluded
that the trial court had erred in reducing the felony classifications
and sentences on the kidnapping convictions, and remanded the case to
the trial court to reinstate defendant’s original convictions and
sentences on those counts and amend the mittimus accordingly. People
v. Dunlap, 124 P.3d 780, 821 (Colo. App. 2004) (Dunlap I). In
its opinion, the division also concluded that neither Apprendi
nor Blakely applied to defendant’s conviction because his
conviction had already become final when the mandate in his original
appeal issued in 1998, which was well before the date of announcement of
the opinions in those cases. Id. The supreme court denied
certiorari and this court issued its mandate on November 30, 2005.
While the case was pending in the trial court
following remand for reinstatement of the original convictions and
sentences, defendant asserted that the original sentence was illegal
because the court had failed to determine restitution, and that any
sentence the trial court might impose would be "at best, the first legal
sentence imposed in this case, and an appealable order." In response,
the prosecution asserted that at the time of sentencing, it did not
request, and the court did not consider restitution because, given the
applicable sentencing range and defendant’s pending capital murder case,
ordering restitution would have been an exercise in futility. Thus, the
prosecution asked the court simply to correct the mittimus in accordance
with the remand instructions and to find that no restitution should be
imposed in this case.
Following a hearing, the trial court determined that
this court’s mandate specifically required it to correct the mittimus to
reinstate defendant’s original conviction and sentence, that such
directive was the law of the case, and that it had no authority to
consider defendant’s other claims. Accordingly, the court reinstated the
original convictions and sentences nunc pro tunc to the original
sentencing date and amended the mittimus, but did not rule on any aspect
of the restitution issue. Defendant now appeals.
I. Jurisdiction to Address the Issues Presented
Defendant did not raise his claims in a
postconviction motion under Crim. P. 35(a) in the trial court. Instead,
he raised them in his "position statement" regarding resentencing in
that court. However, on appeal the People do not oppose our resolution
of the issues because they present questions of law. We further
determine that precluding defendant from seeking relief based solely on
the form of his filing would be contrary to the general policies
underlying postconviction remedies, and would not serve the interests of
finality and judicial economy. See White v. Denver District Court,
766 P.2d 632, 634 (Colo. 1988) (a habeas corpus petition should be
treated as a Crim. P. 35 motion based upon "the substantive
constitutional issues raised therein, rather than [upon] the label
placed on the pleading" (quoting Dodge v. People, 178 Colo. 71,
73, 495 P.2d 213, 214 (1972)). Moreover, if we remanded without
addressing these issues, defendant would likely simply recaption his
position statement, cite Crim. P. 3 5(a), and seek the same relief. No
evidentiary hearing would be necessary in that event. Accordingly, we
may fully resolve the issues now and will address the merits of
II. Consideration of Restitution in Sentencing
Crim. P. 35(a), which became effective in its present
form on July 1, 2004, provides in pertinent part that "[t]he court may
correct a sentence that was not authorized by law . . . at any time."
The parties here assert that the phrase "not authorized by law" means an
illegal sentence, one that is "inconsistent with the statutory scheme
outlined by the legislature." See People v. Rockwell, 125 P.3d
410, 414 (Colo. 2005) (construing former Crim. P. 35(a), which then
provided that "the court may correct an illegal sentence at any time").
We agree with that assertion. See People v. Wenzinger, 155 P.3d
415, 418 (Colo. App. 2006) (amended version of Crim. P. 35(a) merely
codifies case law defining "illegal sentence"); but see People v.
Barton, 174 P.3d 786, 789 n.3 (Colo. 2008) (expressing no opinion on
the meaning of "not authorized by law" in Crim. P. 35(a)).
At the time of defendant’s original sentencing, the
law required the preparation of a presentence report in every felony
case (other than a class 1 felony), and directed that the report contain
information pertinent to restitution. That statute stated that "the
amount of restitution shall be fixed by the court at the time of
sentencing and shall be endorsed upon the mittimus." Ch. 175, sec. 1, §
16-11-102(4), 1984 Colo. Sess. Laws 652.
Courts construing this provision determined that the
statute required a trial court to fix the amount of restitution for
later imposition by the parole board, but that the court had no
authority to order restitution as part of the sentence. See People v.
Powell, 748 P.2d 1355, 1357 (Colo. App. 1987). This interpretation
was confirmed in 1989, when the supreme court decided People v.
Johnson, 780 P.2d 504 (Colo. 1989). See People v. Fichtner,
869 P.2d 539, 542 (Colo. 1994).
In 1996, after the original sentence here was imposed,
the General Assembly amended the statute to provide that the amount of
restitution must be imposed by the court at the time of sentencing. Ch.
288, sec. 4, § 16-11-204.5(1), 1996 Colo. Sess. Laws 1778; see People
v. Apodaca, 998 P.2d 25, 30-3 1 (Colo. App. 1999). However, that
provision is not applicable here.
In People v. Smith, 121 P.3d 243, 251 (Colo.
App. 2005), a division of this court held that every judgment of
conviction must include an order concerning restitution as a mandatory
part of the sentence, and that a sentence without such an order is
illegal. It further noted that an illegal sentence can be corrected at
any time through amendment of the mittimus.
Accordingly, restitution is part of a defendant’s
sentence, and if the trial court does not consider restitution when
imposing the sentence, as required by statute, the sentence is illegal.
Here, it is undisputed that at defendant’s sentencing
neither the prosecution nor defense counsel raised the issue of
restitution, the trial court did not consider or fix restitution, and
the original mittimus did not note the amount of restitution. Thus,
because the court failed to consider and fix the amount of restitution
as required by the statute, the original sentence was illegal. See
Delgado v. People, 105 P.3d 634, 637 (Colo. 2005) (a sentence that
is not in full compliance with the sentencing statutes is illegal). In
addition, the court did not consider or fix the amount of restitution
when it reimposed defendant’s sentence in 2006. Hence, we must remand
this case to the trial court for consideration and fixing of restitution
under the statute that was applicable at the time defendant was
originally sentenced. See People v. Marlott, 191 Colo. 304, 309,
552 P.2d 491, 494 (1976) (defendant must be sentenced under the law in
effect at the time of the commission of the offense); People v.
Whitman, ___ P.3d ___ (Colo. App. No. 04CA1428, Nov. 29, 2007) (same).
Having determined that defendant’s original sentence
is illegal, we next address how that illegality affects the finality of
his conviction. Defendant contends that because his sentence was illegal,
his conviction has never been final. Therefore, he asserts, this court
did not have jurisdiction to consider and rule on either his direct
appeal or his Crim. P. 35(c) appeal because those appeals were premature.
From that premise he argues that, although Blakely, Apprendi, and
Crawford were announced long after his initial conviction and
sentencing occurred, the principles announced in those cases are
applicable to his case because technically his direct appeal has never
taken place. We disagree.
Defendant relies in part upon Leyva v. People,
184 P.3d 48, 49 (Colo. 2008). There, the supreme court held that because
the defendant’s original sentence contained an illegal sentence on one
count, the entire sentence was illegal and was therefore subject to
correction. It further held that the judgment of conviction was subject
to amendment, such that the judgment of conviction was not final or
fully valid. However, the court reached that conclusion in considering
the meaning of the term "conviction" contained in section 16-5-402(1),
C.R.S. 2008, which sets forth a three-year statute of limitations within
which a defendant may seek collateral review of a conviction. Indeed,
the court specifically stated that the question before it was "whether [the
defendant’s] collateral attack on his 1993 conviction, brought within
three years of his resentencing, was properly brought within three years
‘of said conviction’ as that term is used in section 16-5-402(1)." 184
P.3d 49-50. The court also stated that "[o]ur construction has no effect
on matters such as the jurisdiction of appellate courts or the time
limits for filing appeals, as those matters are controlled by different
rules and statutes employing different standards." Id. at 50 n.2.
Because of the specific limitations set forth in the Leyva
opinion and the context in which that case arose, we conclude it is not
applicable to defendant’s sentence.
Defendant also relies upon People v. Rosales,
134 P.3d 429, 431-32 (Colo. App. 2005). There, a division of this court
concluded that a judgment of conviction is not final until sentence is
imposed, that restitution is a mandatory part of a sentence, and that
sentencing is not final until restitution is ordered. It further held
that, because the judgment there was not final until the court ordered a
specific amount of restitution, the trial court retained jurisdiction to
enter an order of restitution and therefore the defendant’s appeal in
that case was premature.
We conclude that Rosales is distinguishable as
well. There, the defect in the sentence – failure to include restitution
– was discovered and addressed before the conclusion of defendant’s
direct appeal. People v. Smith, 121 P.3d at 251, is
distinguishable for the same reason.
We conclude that, in circumstances in which a
defendant has already directly appealed his conviction and lost, and has
likewise failed to obtain postconviction relief upon application to the
trial court and review by an appellate court, his claim that an illegal
sentence has been imposed because of a failure to consider or fix
restitution does not affect the finality of his judgment of conviction.
Thus, he may neither appeal anew from his original conviction or the
denial of his postconviction motion, nor may he seek the application of
cases that were announced after the conclusion of his direct appeal. We
so conclude for a number of reasons.
First, Crim. P. 35(a) provides that a court "may
correct a sentence that was not authorized by law . . . at any
time." The use of the word "may" in the rule "indicates that courts are
free to apply reasonable and prudential limitations on the correction of
illegal sentences." United States v. Woods, 986 F.2d 669, 675 (3d
Cir. 1993) (interpreting previous version of Fed. R. Crim. P. 35 that "a
court may correct an illegal sentence at any time") (citing United
States v. Henry, 709 F.2d 298, 314 n. 23 (5th Cir. 1983)). Because
our legal system has a strong interest in the finality of adjudication,
see People v. Rodriguez, 914 P.2d 230, 249 (Colo. 1996), we
conclude that a prudential limitation disallowing a new direct appeal as
well as disallowing a new appeal of the order denying collateral relief
is appropriate here.
Second, Crim. P. 35(a) deals with motions to correct
illegal sentences. This portion of the rule allows a defendant
only to challenge the legality of the sentence, not the conviction.
Woods, 986 F.2d at 676. Indeed, cases have pointed out that there is
a significant difference between a true illegal sentence claim under
Crim. P. 35(a) that the sentence is inconsistent with the statutory
scheme, and the assertion of a claim that a sentence was imposed in
violation of the constitution, which can involve a claim that the
conviction itself is defective. See Wenzinger, 155 P.3d at 418;
see also Hill v. United States, 368 U.S. 424, 430 (1962) ("[T]he
narrow function of Rule 35 is to permit correction at any time of an
illegal sentence, not to re-examine errors occurring at the trial or
other proceedings prior to the imposition of sentence."). Because
defendant would seek to attack his conviction, not just his sentence, we
decline to allow a new appeal, which would effectively open his entire
case to relitigation, contrary to finality principles.
Third, because no time requirement limits
jurisdiction under Crim. P. 35(a), "courts have invoked [it] only to
correct ‘fundamental’ errors." United States v. Katzin, 824 F.2d
234, 241 (3d Cir. 1987) (citing Hill, 368 U.S. at 428 (habeas
corpus jurisdiction appropriate only to correct "a fundamental defect
which inherently results in a complete miscarriage of justice")). The
trial court’s failure to fix the amount of restitution does not, in our
view, rise to the level of a fundamental error that results in a
miscarriage of justice to defendant.
Finally, the general remedy that flows from a
sentence that is illegal because restitution is not fixed is correction
of the sentence and amendment of the mittimus. See Rosales, 134
P.3d at 435. That remedy is available here, but defendant’s request for
an expanded remedy of a new direct appeal, a new appeal from the denial
of his petition for collateral relief, and the application of new
constitutional holdings, if granted, would literally expand every
successful illegal sentence claim to allow further litigation of already
settled issues. We decline to grant that expansion.
This conclusion is also consistent with the
principles applicable in determining whether a new rule of
constitutional law applies retroactively. In such a determination,
convictions in state courts are considered final when the availability
of direct appeal to the state courts has been exhausted and the time for
filing a petition for a writ of certiorari has elapsed. Edwards v.
People, 129 P.3d 977, 983 (Colo. 2006); People v. McAfee, 160
P.3d 277, 281 (Colo. App. 2007) (finality for purposes of retroactivity
means a judgment of conviction has been rendered, the availability of
appeal exhausted, and the time for a petition for certiorari has elapsed
or a petition for certiorari has been finally denied).
Here, defendant’s conviction was affirmed by a
division of this court in 1998, see Dunlap I, and in that same
year, the supreme court denied certiorari and the mandate issued.
Thereafter, defendant filed a postconviction motion pursuant to Crim. P.
35 in 1999. Although the trial court partially granted defendant’s
postconviction motion by reducing the felony classification for his
kidnapping convictions and corresponding sentences, a division of this
court reversed the trial court’s order, directed the trial court to
reinstate the original convictions and sentences, and found that
Blakely and Apprendi did not apply to defendant’s conviction.
See Dunlap I, 124 P.3d at 821.
Accordingly, under Edwards, 129 P.3d at 983,
defendant’s conviction was final in 1999 for purposes of determining
whether a new rule of constitutional law applies to his conviction. Thus,
we will not disturb the conclusion of the division in Dunlap I
regarding the application of Blakely and Apprendi to
The sentence is reversed to the extent it lacks
consideration and fixing of restitution and is affirmed in all other
respects. The case is remanded to the trial court to consider
restitution, to enter an order fixing the amount, and to amend the
mittimus to so reflect.
JUDGE LOEB and JUDGE CRISWELL concur.