The United States Supreme Court on Tuesday declined to hear the appeal of death-row prisoner Nathan Dunlap, the Colorado man convicted of the 1993 murder of four employees at an Aurora Chuck E. Cheese's restaurant. Dunlap's fate is now in the hands of Governor John Hickenlooper.
Whether or not to stay Dunlap's execution will be one of the most profound decisions yet for Colorado's conflict-averse and image-conscious governor, whose office so far has refused to comment on the case.
Tuesday's announcement brings back memories of Dunlap's rampage, which, pre-Columbine and pre-Aurora, shook the state, made national headlines and triggered calls to punish convicted killers beyond forcing them to spend the rest of their lives behind bars, watching TV and eating three meals a day on the state's dime.
Unlike his predecessor Bill Ritter, a former Denver district attorney, Hickenlooper, a former brewmaster, has no background in law enforcement. Over the decade he has spent in politics, Hickenlooper has taken carefully scripted tough-on-crime stances on issues ranging from security at the Democratic National Convention to defending Denver police officers in excessive-force cases.
Still, the timing of the Supreme Court's decision is tricky. It comes the week Democratic lawmakers had planned to propose a bill abolishing the death penalty in Colorado. The Governor -- who has hedged on the issue for years -- recently has suggested he's leaning toward abolition. Behind the scenes, his chief legal counsel, Jack Finlaw, has spent months urging policy makers to end the death penalty.
Despite those efforts, sources close to the discussions say Hickenlooper's resolve has waned in the past few weeks for fear that pushing abolition this session could compromise two other liberal pieces of his legislative agenda -- passing same-sex civil unions and strengthening gun control. Democratic House Speaker Mark Ferrandino apparently shares those concerns. A meeting is scheduled this afternoon to discuss the death-penalty bill and whether to stall its introduction and effectively kill it this session.
Instead of abolishing the death penalty in the state, Hickenlooper could push a moratorium on executions, thereby passing the responsibility to his successor. A moratorium could keep the status quo in place for decades. Since the national reinstatement of capital punishment in 1976, Colorado has executed only one man, Gary Lee Davis, a convicted murderer who chose ice cream as his last meal before dying by lethal injection in 1997.
Davis's execution came during the period when judges, not juries, had the authority to hand down death sentences in Colorado. In the aftermath of the Chuck E. Cheese's murders and other high-profile cases, lawmakers in 1995 had set up a system in which a three-judge panel could sentence murder convicts to death. That system was deemed unconstitutional in 2002 on grounds that the panels don't represent a trial by peers.
Meantime, Dunlap and a handful of other death row inmates have pinballed through the court system as the laws around capital punishment continue to morph.
Dunlap, now 38, was 19 when he shot up the family restaurant. He had recently lost a job there making pizza dough. He opened fire after-hours while workers were cleaning up for the evening. He killed four restaurant employees -- including three teenagers -- and wounded one other.
In April, the 10th Circuit Court of appeals affirmed Dunlap's death sentence, ruling that his lawyers competently represented him at trial, even if they didn't present evidence of Dunlap's mental illness. The Supreme Court's decision Tuesday essentially exhausts Dunlap's legal options.
Jim Peters, the former chief deputy prosecutor on Dunlap's case, said Tuesday that, "The Criminal Justice system has provided Mr. Dunlap ample opportunity to appeal his case.
"On behalf of the victims' families Mr. Dunlap's case should be concluded and the execution ordered by his jury should be carried out."
George Brauchler, the newly elected district attorney in the 18th Judicial District, called the Supreme Court's decision "appropriate" and vowed to "continue to seek imposition of the death sentence in this case, in the interests of justice."
No Colorado governor has ever commuted a death sentence, nor permanently stayed an execution.
Hickenlooper will weigh many factors in making his decision.
One is input from the Department of Corrections, which would bear the responsibility of carrying out Dunlap's execution. The task would require months if not more of legal, media and logistical planning. The room at Colorado State Penitentiary where executions are performed has gone unused for 15 years. On a tour this summer, officials struggled to find the keys to open the room. Once they finally opened the door, the rancid odor of toilet water that had gone unflushed for what officials surmised was months or even years poured into the hallways. It's unclear who on the Department of Corrections staff would be trained and willing to administer the lethal injection. Also at issue is cost. Budget cuts have strapped the department, causing it to shutter one of its newest prisons. Executing Dunlap would further strain DOC's limited resources.
Other factors include public opinion, especially racial concerns. Dunlap is black in a state that, according to the 2010 Census, has only 4 percent African-American residents.
"It's worth noticing that everyone on death row in Colorado is black," says Sam Kamin, professor and director of the Constitutional Rights and Remedies Program at the University of Denver College of Law.
A report on the cost of the death penalty authored by Justin
Marceau, of the University of Denver Law School, and Hollis Whitson, a Denver attorney who has represented a number of capital defendants, reveals 22 formal death penalty prosecutions for the period 1999 through 2010. In 86 percent of those cases, the defendant was a member of an ethnic minority group.
"The failure of the Supreme Court to take on [Dunlap's] case at this point is going to make Colorado think about how we feel about capital punishment," Kamin says. "It's one thing to issue a death sentence. It's another to carry it out. [This] will force people to think about their views in the context of an actual person."
Dunlap -- who has aged 20 years since the murders and and hasn't had a disciplinary write-up in prison in over a decade -- is no longer the man Coloradans associate with revenge for mass murder. James Holmes, charged with the shooting deaths of 12 people and wounding of 58 others at an Aurora cineplex in July, has taken on that role.
Like Holmes, Dunlap has significant mental health issues. Court testimony has revealed that Dunlap was brutalized as a young child by his 400-lb father, a Baptist minister named Jerry Dunlap. When Dunlap was a teen, a social worker told him that Jerry Dunlap was not his biological father. He since has been diagnosed with serious bipolar disorder, which is known to cause episodic mood swings that can be violent and even homicidal.
Hickenlooper could consider those factors in deciding whether to put Dunlap to death.