Feature

The Politics of Killing

Fifteen years after the Chuck E. Cheese massacre in Aurora, the shooter is still on death row. Nathan Dunlap's only hope that his life might be spared is Colorado Governor Bill Ritter.

December 2008

THE KEY WORDS ARE "INEFFECTIVE" AND "PROBABLY"
In the 15 years since Nathan Dunlap killed four people at the Chuck E. Cheese, the state has spent more than $2 million trying to kill him. The original trial had more than 21,000 pages of discovery materials alone, listed more than 900 potential witnesses, and lasted five weeks. Twelve Coloradans were asked to judge whether Dunlap should live or die. But, if Nathan had a choice, no juror would have been in a Colorado Springs courtroom trying to decide whether he should be sent to death row. Just days after the first anniversary of his crime in 1994, Nathan offered a plea bargain to the Arapahoe County DA's office: If the state agreed not to kill him, Dunlap would plead guilty to four charges of murder and accept his punishment. He would never leave prison. But Gallagher's office was adamant; Dunlap would face death. The offer was summarily rejected.

"If Nathan Dunlap [had been permitted to] plead guilty to life without parole, he would have faded into obscurity years ago," says David Lane. "He'd be doing his life sentence without the possibility of parole. There would have been no trial that cost millions. There would have been no appellate process that's cost millions. He would have been another prisoner in the system." Instead, Nathan Dunlap entered the languishing, confusing, stop-and-go, and enormously costly appeals process. The Colorado Supreme Court rejected Nathan's first appeal in 1999 and another in 2001. A year later, the U.S. Supreme Court refused to look at the case.

Just over six years ago, in 2002, the original trial court granted Dunlap's request for a Crim. P. 35(b) hearing to consider the reduction of his sentences. The hearing lasted an unprecedented 52 days and gave Dunlap a second chance at presenting his case. This time, Dunlap's new attorney, Philip Cherner, would call witnesses, put expert after expert on the stand in front of the same Judge John Leopold that had presided over the first trial. And there was something there. While the court would only look at evidence relating to the time of the trial—meaning that Dunlap's 1997 manic break was out—Cherner kept plugging away at what a mess the original trial counsel had made. The court agreed, going so far as to vacate two minor sentences and declaring that Dunlap's trial counsel had been deficient.

It might have been a stunning decision—if it were not for the caveats. Because of what the judge described as "overwhelming" evidence of Dunlap's guilt, the court declared that the attorneys' performance was "ineffective" but did not fall below a constitutionally acceptable bar. The court went on to acknowledge that while more was known about bipolar disorder, it was irrelevant. As for Dr. Barkhorn, "she could have been a valuable asset for the defense if she had had all of the [medical and mental-health] materials." Still, the court ruled that while Dunlap could suffer from the disorder and Dr. Barkhorn's testimony would have been helpful, the evidence "probably would have been unpersuasive here."

In other words, even though the defense was deficient, experts weren't called to testify, and Dr. Barkhorn was not given full access to Dunlap's record, the court found that no juror would have been swayed. Effectively, the court guessed that even if these issues were dealt with during the original trial, all 12 jurors would still have voted for death. Nathan Dunlap appealed again, this time to the state's highest court, the Colorado Supreme Court. If his trial counsel had been deficient, so went the appellate argument, didn't that impact the jury? In May 2007, the Colorado Supreme Court said no. And in a unanimous decision the state Supreme Court struck down the lower court's deficiency finding.

All of Nathan Dunlap's legal hopes have been exhausted in the state courts. Today, prisoner No. 89148's appeals have moved onto the U.S. District Court, where yet another team of attorneys—this time a federal public defender, Madeline Cohen—will submit arguments similar to those made time and again to the state judges. (Cohen declined to comment for this story and advised Dunlap to not comment.) While this legal phase will linger for as much as three or four years, there's little to no reason to expect a different outcome, meaning there's little to no chance the federal court will change Dunlap's death sentence. Thus far, Dunlap has spent 180 months in prison; the troubled boy is now a young dead man walking.

Perhaps the only time when Nathan Dunlap's life and mind were not enveloped by chaos, abuse, and psychosis came just a few months before that December night inside the Chuck E. Cheese. Dunlap's mother and father, Carol and Jerry, were in Tennessee working on their marriage, and Carol left Nathan in the care of a coworker and friend, Benton Jordan. Jordan, a tall man with gray hair and earrings in both ears, and who now works at a pottery store, watched Dunlap for two or three weeks. "He was a good kid," Jordan says. "He had potential. He just needed a stable home." Jordan tried to give him that by treating him as if he were one of his own two kids, giving Dunlap chores and watching over him.

That's exactly what Jordan was doing one day—watching over Dunlap—when he saw a curious thing. He'd assigned Dunlap the age-old summer chore of staining the deck. From a window, Jordan watched as the kid dipped the brush in a polyurethane stain and began coating the weathered boards. Dunlap worked for a while, then paused, scooped something up in his hands, and gently set it aside, out of the way. Jordan was intrigued. He asked Dunlap what it was that he had moved. A beetle, Dunlap told him, had crawled into the path of his brush. Dunlap said, "I put him on the side of the deck to keep from killing him."

At 19, when Colorado first caught a glimpse of Dunlap, they wanted to kill him, says attorney Lane. But if they had seen him when he was 10, they would have done anything to help him. "Nathan Dunlap's odds are probably not very good," Lane says. "If justice will be done, somebody should stand up and say, 'Hey—had this kid's entire mental-health picture been adequately presented to the jury, there would have been at least one juror that would have said, 'No, given his level of mental illness, I'm not going to kill this kid.'"

The only person who can do that now is Governor Bill Ritter.


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