Dist. Judge William Ela said his “inclination” is to find the death penalty statute constitutional, during a Monday afternoon hearing on motions in the upcoming murder trial of Kenneth H. Botham Jr.

But he told prosecution and defense attorneys preparing for the trial that the opinion in “not binding at this point.”

The motion asking Jude Ela to find the death penalty statute unconstitutional was filed by Deputy State Public Defender Lee Foreman, the 28-year-old Botham’s lawyer.

Botham is accused of the murders of his wife, Patricia, and her neighbors, Mrs. Linda Miracle, and sons, Troy and Chad, on Aug. 23, 1975.  The four bodies were later found in the Gunnison River.  Botham has pleaded innocent of four counts of first degree murder, with his trial scheduled to begin Nov. 8 in Mesa County District Court.

Because, under Colorado’s current statutes, the death penalty can be handed down on a first degree murder charge, one of several motions filed by Foreman in August was on the capital punishment penalty.

Rules on motions

On Monday morning, Judge Ela ruled on some of the other motions filed by Foreman.  He ruled that the same jury will decide the penalty as heard the trial, in case of a “guilty” verdict; that the jury will be selected from inside Mesa County; and that the first degree murder statute is constitutional.

Judge Ela gave verbal decisions at the conclusions of arguments on the three morning motions.  He said he wants to do more studying on the arguments on the motion to declare the death penalty unconstitutional before reaching a final decision.  He did not indicate when that decision will be forthcoming.

The last of Foreman’s motions – for suppression of some of the claimed evidence – is scheduled to be heard Wednesday in district court.

Botham appeared in court Monday, as he has for almost every one of the many pretrial hearings which have been held since he was arrested on Nov. 8, 1975.  There were 11 spectators in the courtroom, four of them law officers, and one the investigator for the public defender’s office.  A few lawyers also wandered in and out during the day-long hearing.

Penalty up to jury

During lengthy arguments Monday afternoon on the constitutionality of the death statute, Foreman claimed that there is a statutory limit on appellate powers related to the death penalty.  Under the current law, if a person is found guilty of first degree murder, a jury then decides whether he should have the death penalty or life imprisonment.

Any criminal case can always be appealed on its merits, with the defense seeking to overturn a “guilty” verdict, cut [but] the current first degree murder statute does not contain specific appeal procedures.  Foreman’s questions on the constitutionality of the statute were based on his contentions that, in the absence of the statutory authority, the court has no jurisdiction to review the sentence.

Foreman said the defense feels it lacks appellate procedures on the penalty and this makes the statute “constitutionally infirm” (unconstitutional).

Burden of proof

Foreman claimed that the statute itself is “unconstitutionally vague and overbroad.”  He claimed that the prosecutor should have to prove, beyond a reasonable doubt, the “aggravating factors” on which the death penalty may be given under the first degree murder law.  He said that the prosecution should also have to disprove mitigating factors, which the defense might introduce in an attempt to keep the jury from asking for the death penalty.

Dist. Atty. Terrance Farina contended that any defendant does not have a constitutional right to appeal but only the right to a fair system of justice.  He said that most states have adopted the appellate procedures on their own.  But he said he sees no reason that state Supreme Court cannot “put a judicial gloss” on the statute and interpret is so that there can be an appeal from the terms of a death sentence.

Farina also argued that, in the sentencing alternatives which would occur following a first degree murder finding, a defendant is not entitled to proof “beyond a reasonable doubt” but only to the test of preponderance of the evidence.

“This is not in the guilt or innocence stage.  It’s simply alternate forms of penalty, and the statute sets up the procedure,” Farina claimed.


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