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DISTRICT COURT,DOUGLAS COUNTY, COLORADO Court Address: 4000 Justice Way Castle Rock, CO 80109 (303)663-7200


Autobee Family Attorneys: Iris Eytan, #29505 Patrick A. Withers,#45380

Reilly Pozner LLP

Case Number: 2002CR782 (Douglas County)

Lincoln County Case Number: 02CR95 Division: 3 Courtroom: 3

1900 16th Street, Suite 1700 Denver, Colorado 80202 Telephone: (303)893-6100 Facsimile: (303)893-6110 E-mail: ievtan(

Richard B. Caschette District Court Judge Div. 3

Douglas County Justice Center 4000 Justice Way Ste. 2009 Castle Rock, CO 80109 Phone: 720-437-6271 720-437-6272 303-688-3905 Fax:


Bob Autobee is legally entitled to express his views at the sentencing hearing on the appropriate sentence for any conviction in connection with the murder of Bob's son, Eric. The prosecution, which is legally required to protect victims' rights to express their opinions at sentencing hearings, is shirking that duty and violating Colorado law in its zeal to obtain the death penalty. The Court should protect victim rights and overrule the prosecution's objections to sentencing testimony by Bob Autobee and his family members.

Introduction Eleven years ago Bob Autobee's son, Eric, was killed at the tender age of 23. That death, for which no parent could be prepared, traumatized Bob, his wife Lola, his brother Scott, and the entire Autobee family. Bob would like any jury considering the appropriate penalty for Eric's killer to know who Eric truly was and how his loss has impacted the Autobees. The Autobees loved Eric deeply, and now remember him for his peace-loving nature, his love of the outdoors, and his innate desire to find moments of calm when hunting or fishing. Eric was a gentle soul who would hold Bob's hands even when he was in his 20's. Eric started his career in the culinary arts and then, like Bob, became a prison corrections officer. Despite the inhumanity he saw axound him, Eric would not speak disdainfully of inmates, but, instead, recognized their human dignity. Eric accomplished much in his short time on earth he saved three lives before he died but missed out on even more. It pains the Autobees to consider the many milestones in Eric's life that might have occurred were he still alive, including marriage, children, and career advancement. The crime affected the Autobees not just because of their beloved son's loss, but also because of who they became after this loss. After Eric's death, their warm feelings of love that Eric always nurtured quickly turned into cold feelings of vengeance and violence. Originally, the Autobees fervently supported the prosecution's efforts to seek absolute retribution. Over time, however, and with reflection, they realized that Eric would not have wanted this for himself or for them; Eric would not have wanted someone killed in his name, nor would he have wanted his family to live in the darkness of hatred. The Autobees know this because they know how Eric lived: by loving life, saving lives, and extending mercy to the merciless. The effect of the crime on the Autobees cannot be separated from this ongoing death penalty prosecution. Bob and his family have found healing in the forgiveness that they have extended to their son's killer. However, the prosecution strives to forever undo this healing by seeking to avenge one killing with another, over the family's pleas for mercy. For the Autobee family, a death sentence and the accompanying years of litigation, all supposedly done in their son's name, would rob them of peace. For, in the eyes of society, their son's name forever would be associated with cruelty and violence, rather than the human dignity and mercy he embodied in life. Discussion The prosecution's attempt to muzzle the Autobees from expressing their opinion at a sentencing hearing violates Colorado law. Indeed, as reflected in the first proceeding, there would be no attempt to silence the Autobees if they agreed with the prosecution. Colorado laws protecting a victim's rights are neither symbolic nor enacted for prosecutorial benefit, but to

provide actual protection for victims. And the content of a victim's opinions never should be used as a litmus test for providing this protection. Even the prosecution appears to concede that victims in a capital proceeding may inform the jury of the harm they have suffered from the offense. In its zeal to avenge Eric Autobee's death with another death, however, the prosecution seeks to block the Autobee family from expressing to the jury their opinions on the appropriate sentence. The line attempted to be drawn by the prosecution contradicts express statutory provisions and ignores the harm this continued capital prosecution is causing the Autobees. I. The Prosecution Is Violating Colorado Provisions Protecting Victim Rights.

The General Assembly has sought to "assure that all victims of ... crimes are honored and protected by ... prosecutors[] and judges in a manner no less vigorous than the protection afforded to criminal defendants." C.R.S. 24-4.1-301. Among the "Rights afforded to victims" is "[t]he right to be heard at any court proceeding" in which the defendant "convicted of a crime against the victim is sentenced." 24-4.1-302.5(1)(d). In particular, "[t]he victim of any crime or a relative of the victim, if the victim has died, has the right to attend all sentencing proceedings resulting from a conviction of said crime under any laws ofthis state." 16-11-601 (emphasis added). A crime victim has "the right to appear, personally or with counsel, at the sentencing proceeding and to adequately and reasonably express his or her views" regarding "the type of sentence which should be imposed by the court." Id. (emphasis added). Under Colorado law, prosecutors are required to supportnot opposethis right by "infortn[ing] each victim ofl' his or her "right" to "express an opinion at the sentencing hearing of any sentence proposed to the court for consideration." 24-4.1-303(12)(emphasis added). This provision explicitly applies to potential first-degree murder convictions. See 24-4.1-302(1)(a)(including "[m]urder in the first degree" in the applicable definition of"crime"). In a capital case, this "sentencing hearing" occurs when considering "whether the defendant should be sentenced to death or life imprisonment." 18-1.3-1201(1)(a). Section 24-4.1-302.5(1)(d), which requires the victim to be heard at sentencing proceedings, "reflects a legislative determination as to when a victim's input would be relevant." Gansz v. People, 888 P.2d 256, 258 (Colo. 1995). Accordingly, there is no merit to the prosecution's contention that section 18-1.3-1201(1)(b) limits the right of Bob Autobee and his family to speak at the sentencing hearing; indeed, that latter section generally allows presentation of"relevant" evidence. Because Colorado law expressly grants Bob Autobee the right to express his sentencing -state cases limiting a victim's rights based opinion, the prosecution misplaces reliance on out-of "[T]he issue comes down to ( on relevance. See Greene v. State, 37 S.W.3d 579, 585 (Ark. 2001) whether the proffered evidence from [the victim's wife] is relevant" (emphasis omitted)); Com. K~

v. Bomar, 826 A.2d 831, 852 (Pa. 2003) (concluding that "evidence that a member of the victim's family is opposed to the death penalty is irrelevant under Pennsylvania's capital sentencing scheme" because it was not authorized under 42 Pa.C.S. 9711(e)). Similarly, the prosecution misplaces reliance on out-of-state cases discussing the rights of the defendant's parents, friends, and associates. See, e.g., Taylor v. State, 666 So. 2d 36, 51 (Ala. Crim. App. 1994); Wallace v. State, 282 S.E.2d 325, 333(Ga. 1981); Stanford v. Com.,734 S.W.2d 781, 789 (Ky. 1987). The prosecution also cites Robison v. Maynard, 829 F.2d 1501, 1505 (lOt" Cir. 1987), overruled by Romano v. Gibson, 239 F.3d 1156 (10th Cir. 2001), to argue that victims are never permitted to offer testimony on the personal impact of capital sentencing. However, the Tenth Circuit clarified in later litigation that its holding in Robison was limited to "the context of Oklahoma law." Robison v. Maynard, 943 F.2d 1216, 1217 (10th Cir. 1991). And Oklahoma law in 1987 did not provide the broad protections for crime victims currently found under Colorado law. See 1993 Okla. Sess. Law Serv. Ch. 325 (S.B. 451)(enacting Oklahoma Victim's Rights Act, effective September 1, 1993). -state cases, The present issue involves the rights of crime victimsnot, as in these out-of a right of a defendant, much less any interest of the prosecution. Colorado sets itself apart from these other states by conveying constitutional rights to victims to be heard at all critical stages of a criminal proceeding. Colo. Const. art II 16a. Unlike these other states, Colorado passed the Victim's Right Statute, in which our General Assembly has determined that the victim's opinions are relevant to sentencing proceedings. Gansz, 888 P.2d at 258. Here, where Bob Autobee and his family wish to urge the jury against any further killing, there is no conflict between the rights Colorado accords crime victims and any other constitutional rights. The prosecution is wrong to suggest that victim testimony about the impact of capital sentencing necessarily violates the Eighth Amendment. Cases so holding, e.g., State v. Gardner, 789 P.2d 273, 286 (Utah 1989); State v. Pirtle, 904 P.2d 245, 269(Wash. 1995), rely on Booth v. Maryland, 482 U.S. 496, 508-09 (1987), overruled by Payne v. Tennessee, 501 U.S. 808 (1991). It is unclear whether Booth is still good law. Compare Ware v. State, 759 A.2d 764, 783(Md. 2000), with Ledbetter v. State, 933 P.2d 880, 890-91 (Okla. 1997). But that issue is not presented here, because no Eighth Amendment right of a defendant is implicated. The prosecution's argument turns the Constitution on its head. The Supreme Court, in contrast, has never "suggest[ed] that the decision to afford an individual defendant mercy violates the Constitution." Gregg v. Georgia,428 U.S. 153, 199(1976). II. The Prosecution Ignores the Harm It Is Causing the Autobees.

The prosecution, in addition to shirking its legal duties to victims and misunderstanding the Constitution, wrongly implies that imposition of the death penalty would not harm Bob Autobee or his family. While conceding that a victim may present testimony of "the harm that the victim has sustained as a result of the crime," 24-4.1-302.5(2)(g), the prosecution ignores L!

that the harm being caused by its unyielding pursuit of a penalty that violates the Autobee family's beliefsin the name of their dead son and family member. "[S]urvivors are the ones most directly affected by the crime and society's response to it." Marilyn Peterson Armour &Mark S. Umbreit, Assessing the Impact ofthe Ultimate Penal Sanction on Homicide Survivors: A Two State Comparison, 96 Marq. L. Rev. 1, 27 (2012). This crime has resulted in an eleven-year pursuit of the death penalty, which has inflicted intense harm on the Autobee family. They have been unable to recover and heal because of "repetitive confrontations with the criminal justices system," which psychological and sociological studies agree "disrupt the recovery of victims." Margaret Vandiver, The Impact ofthe Death Penalty on the Families of Homicide Victims and of Condemned Prisoners, in America's Experiment with Capital Punishment:'Reflections on the Past, Present, and Future ofthe Ultimate Penal Sanction 477,484(James R. Acker et al. eds., 1998). Further, the Autobee family has experienced the immense harm caused, not only from the specter of the death penalty being imposed, but also its lack of any healing potential. Armour & Umbreit, supra, at 85. This harm has been exacerbated by the lack of positive relationships with the prosecution throughout these proceedings, leading to a greater dissatisfaction with the justice system. See id. (noting that "positive relationships with key stakeholders," including "the prosecution team," decreases grief and loss). These failures have greatly compounded the harm suffered by the Autobees as a result ofthis crime. Because the Autobee family's beliefs conflict with the prosecution's agenda, the prosecution has "relegated [them] to the status of second-class victims." Robert Renny Cushing & Susannah Sheffer, Dignity Denied: The Experience ofMurder Victims' Family Members who Oppose the Death Penalty 8 (2002). In contrast to the defendant's first trial, the Autobee family has been marginalized and made all-but-invisible in these proceedings, solely because the family diverged from the prosecution's unitary desire to seek the death penalty. This is sadly consistent with the general experience of murder victims whose rights are ignored when their interests diverge from those of the prosecution. See id.; cf. Susan Bandes, Victim Standing, 1999 Utah L. ( "[T]he sorts of victim initiatives that have been successful have been Rev. 331, 333-34 (1999) "). Through their relentless those, and only those, that advance the prosecution's own agenda. fixation on the death penalty, the prosecution repeatedly has ignored the family's wishes, thereby allowing the prosecution's policy notions to "take precedence over the personal needs of the family." Marilyn Peterson Armour, Journey of Family Members of Homicide Victims: A Qualitative Study ofTheir Posthomicide Experience, 72 Am. J. Orthopsychiatry 372, 379(2002). Conclusion Colorado law and fundamental fairness require denying the prosecution's attempt to deny victim rights. The Autobees ask this Court to recognize and protect their right to express their views concerning the type of sentence that should be imposed. They assure the Court that they 5

will address the jury in a respectful and dignified manner that honors Eric's life, describes how his loss continues to affect them, and explains how and why they would be harmed rather than helped by a death sentence imposed in response to his killing. Respectfully submitted this 24~' day of January, 2014.

Ir Eytan,#29505 CERTIFICATE OF SERVICE I hereby certify that on this 24~' day of January, 2014, a true and complete copy ofthe foregoing was emailed to the following: Richard.Caschette( Cheryl.Laynenae, Amanda.Venen~a(a~ a~e(a~ udic P Kaitlyn. i ~brauchler~a, itopolnicki djones( scl~, amunoz(cr~, dedwards(a, cta,Ylornae, Eric.freund(a, Amv.Johnson(ue, Dlane Kathr~( Kmc uire(ct~, Daniel.edwards~u, jakard( bonnieparale~~al( Hollis.whitson(a, helene( Michele( kstevenson(

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