AURORA | Prosecutors asked a judge June 10 to keep the case against convicted killer Nathan Dunlap active, in case a future governor decides to reinstate his death sentence.
Even though Gov. John Hickenlooper granted Dunlap a temporary reprieve last month, prosecutors want Arapahoe County District Judge William Sylvester to at least start considering any issues the defense planned to raise before the execution was halted.
“The issues that can be addressed should be addressed,” prosecutor Matt Maillaro told Sylvester during a hearing Monday with lawyers in the case. Dunlap, convicted of killing four people in 1993 at a Chuck E. Cheese’s, didn’t attend the proceeding.
Prosecutors want Sylvester to tell defense lawyers to file any motions they have in mind so they can be argued. The defense said that would be speculative and outside the court’s power.
Defense attorney Phil Cherner said public standards are evolving and the death penalty might someday be considered cruel and unusual punishment. It’s “equally plausible” that whoever succeeds Hickenlooper will decide to keep the reprieve in place, he said.
Sylvester said he would issue a ruling soon.
A civil lawsuit the American Civil Liberties Union of Colorado filed in connection with the case is also still working its way through the courts even after the governor stopped Dunlap’s execution. That suit demands the state turn over information about the drugs the state planned to use to kill Dunlap and other details about the procedure.
John Krieger, a spokesman for the ACLU of Colorado, said this week that the organization is still pursuing the case because it’s important that the public know how the state carries out executions.
“It’s about lethal injection more than it’s about Nathan Dunlap,” he said.
The case is scheduled to go before a judge for a hearing June 21, he said.
Dunlap was scheduled to be executed in August for the ambush slayings of three teens and a 50-year-old mother working at the restaurant in Aurora.
The victims, all employees, were closing up the restaurant when Dunlap emerged from hiding in a restroom and shot them. Dunlap, then 19, had recently been fired from a job there.
Killed were Sylvia Crowell, 19; Ben Grant and Colleen O’Connor, both 17; and Margaret Kohlberg, 50, who was on her first day on the job. Each was shot in the head. A co-worker Bobby Stephens, then 20, was also shot in the head, but he survived and testified against Dunlap.
In granting the reprieve, Hickenlooper cited doubts about the fairness of Colorado’s death penalty system and about whether the state could even get the drugs required for lethal injection, the execution method mandated by state law.
Hickenlooper said he is unlikely to lift the reprieve as long as he is governor. His first term has 18 months left, and if re-elected, he could remain governor until January 2019.
District Attorney George Brauchler has been openly critical about the decision. After the hearing, he said Hickenlooper could have allowed the execution to go on, or granted clemency and converted Dunlap’s sentence to life without parole. Brauchler said the lack of a final decision on Dunlap could end up giving the defense a reason to eventually argue that a long wait on death row is cruel and unusual punishment.
“He’s a cold-blooded killer and I don’t shed a single tear for whatever angst he feels sitting in prison,” he said.
In a motion filed last week, prosecutors argued Dunlap is still under the death penalty and that his execution has been delayed but not ruled out. The motion said it is possible Colorado will elect a new governor in 2014 “whose first act will be to rescind the executive order (granting the reprieve) and permit the death week to be set.”
In their own motion, Dunlap’s lawyers argued that the reprieve took the case out of Sylvester’s jurisdiction. They also said they no longer planned to file any motions in his court because they were no longer necessary.
Aurora Sentinel reporter Brandon Johansson contributed to this report.