Kenneth Botham Jr.’s lawyer wants the death penalty thrown out and a murder trial jury to be selected outside Mesa County.
These were among motions filed Wednesday on behalf of the Grand Junction man in district court where Botham faces a trial on four counts of first-degree murder.
Other motions also filed by Lee Foreman, a state deputy public defender, seek dismissal of the four murder counts as unconstitutional and the suppression of certain evidence gathered before, during and after Botham’s arrest last November.
Foreman, Mesa County Dist. Atty. Terrance Farina and Dist. Judge William Ela have yet to agree to a hearing date on the motions. However, Farina said the hearing would probably be held sometime in September.
Bodies found last fall
Botham, 28, is charged with the murders last August of his wife, Patricia, 25, and of Mrs. Linda Miracle, 24, and her two sons, Troy, 5, and Chad, 3. The two families lived across the street from each other on the 1900 block of Ouray. The four bodies were found in the Gunnison River over a six-day period last fall.
Botham is slated to go on trial for the murders on Nov. 8.
The longest of Foreman’s pre-trial motions concerns the death penalty. Colorado law says that upon conviction on a first-degree murder charge, a court or jury shall conduct a separate sentencing hearing to determine whether a defendant should be sentenced to death or life in imprisonment.
Foreman is arguing that such sentencing hearings call for a “series of uncontrolled, discretionary judgments that operate to spare the lives of some defendants while others in similar circumstances are sentenced to die.”
Foreman’s motion says that because this process is “arbitrary,” the death sentence represents the type of “cruel and unusual punishment” that is prohibited by the U.S. Constitution.
Foreman also is arguing that the factors that a court or jury must evaluate when considering imposition of a death penalty, such as whether the murder was committed “in an especially heinous, cruel or depraved manner,” are vague and poorly defined.
For these reasons, he is asking Ela to strike consideration of the death penalty in the Botham case.
In conjunction with this motion, Foreman is also asking for a detailing by the district attorney’s office of the factors that would justify consideration of the death penalty in the Botham case.
Foreman is seeking to have the jurors for the trial selected from outside Mesa county because of the publicity the four murders have generated in the area.
This is the same argument used by Foreman when he sought to have the entire trial held outside Mesa County. Judge Ela denied that request earlier this year and the Colorado Supreme Court last week declined to hear an appeal of this ruling.
In maintaining that the first-degree murder charges against Botham are unconstitutional and thus should be dismissed, Foreman argues in his motion that such charges cannot be distinguished in Colorado law from second-degree murder charges.
As a result, Foreman says, Botham’s rights to due process under the law are violated by the “arbitrary filing of a greater charge when a lesser charge, that is indistinguishable, could have been filed.”
Another of Foreman’s motions ask that any statements taken from Botham or evidence gathered from his person, home or place of employment be suppressed.
Farina said Wednesday afternoon he plans to contest all of Foreman’s motions.
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