First degree murder charges will not be dismissed and a jury from outside Mesa County will not be empaneled in the Kenneth Botham murder trial.

Dist. Judge William Ela ruled on those motions this morning in Mesa County District Court, along with denying a double trial, one on the issue of guilt or innocence and one on the penalty in case of a guilty verdict.

The judge also ruled that a bill of particulars dealing with which of the “alleged aggravating factors” might be present to allow for imposition of the death penalty must be given the defense by the prosecution.  But he ruled that it must be “mutually operative” with both prosecution and defense lawyers submitting such information, to each other.

Botham is accused of the murders of his wife, Patricia, her neighbor, Mrs. Linda Miracle and Mrs. Miracle’s sons, Troy and Chad, on Aug. 23, 1975.  The four bodies were found in late September 1975 in the Gunnison River.  Botham has pleaded innocent of the four counts of first degree murder.

Variety of motions

State Deputy Public Defender Lee Foreman of Denver, arguing on a variety of motions today, was centering at noon recess on one asking that the death penalty be declared unconstitutional.  Should the penalty be declared unconstitutional by Judge Ela, it would eliminate Botham’s being executed, should he be found guilty of the charges in a trial slated to begin Nov. 8.

Foreman argues this morning that, in two of five cases decided in the U.S. Supreme Court this past summer, the state’s death penalty statute was found unconstitutional.  He said that the reasoning was that the two states’ statutes were inflexible and did not allow for mitigating evidence on the individual defendant’s cases.  He argued that Colorado’s death penalty statute is equally inflexible.

Foreman will also seek suppression of evidence in the hearing which is scheduled to continue on Wednesday.

Foreman noted this morning to the court that he was without authority on seeking to have a jury from outside Mesa County.  But he cited what he called “an unusual amount of publicity” surrounding the case and said he felt is was a safety precaution.

No law exists

Farina said he viewed it as a jurisdiction problem, noting that there is no statutory provision for such a practice in Colorado and no authority for a judge to sit in another county unless under assignment by the Supreme Court.

Judge Ela said he felt he would lack authority to sit in another jurisdiction and told Foreman he would deny the motion, unless it becomes impossible to find a jury in Mesa County.

In seeking to have the first degree murder charges dropped, Foreman argued that the statutory definitions of first degree and second degree murder are constitutionally vague.

Farina argued that the definition of first degree murder as “after deliberation” and of second degree murder as “intentional” would allow an adequately instructed jury to understand.

Judge Ela said the court “sees a distinction between “intentional” and “after deliberation,” and noted that it must interpret a law as constitutional where a reasonable distinction is seen.  He ruled that the first degree murder statute is constitutional.

The double trial (called “bifurcated” in the statutes) provides that a jury hears the testimony in the trial.  If that jury returns a guilty verdict on a first degree murder charge, it immediately goes back for a second trial to determine the punishment.  Foreman’s motion sought to have one jury hear the trial evidence and, in case of a “guilty” verdict, a second jury to set the penalty.


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