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Andrew Cohen of The Atlantic has published an in-depth piece today about the efforts of Arapahoe County District Attorney George Brauchler to prevent Bob Autobee, father of Eric Autobee, a prison guard murdered by capital defendant Edward Montour, from testifying as a mitigation witness in the sentencing phase of Montour’s capital trial because Autobee doesn’t want his son’s killer to receive the death penalty.

For months, Autobee has publicly opposed Brauchler’s decision to seek the death penalty against Montour, who offered to plead guilty in exchange for a life sentence in the case – even protesting on the steps of the courthouse as potential jurors walked inside for jury selection.

Cohen writes,

Brauchler surely has no moral answer for this, and the legal answer he has ginned up barely passes the straight-face test, but that has not stopped him from seeking to silence the Autobees’ voice during the upcoming trial. “To permit testimony concerning the victims’ general view of the death penalty or whether this particular defendant should be executed or given a life sentence invades the province of the jury and should not be permitted,” prosecutors told the judge earlier this month. Can you imagine them making that argument if the Autobees  were still advocating for Montour’s death?

While Brauchler’s behavior is not an example of prosecutorial misconduct, the overreaching involved in his attempts to silence the victim’s family’s wishes in this case illustrates the win-at-all-costs mentality that gives rise to prosecutorial misconduct in other instances.

Cohen says Autobee’s attorney has pushed back on Brauchler’s arguments to the trial judge as he fights to have Mr. Autobee’s testimony on Montour’s potential sentence excluded, citing Colorado law:

In their response, the Autobees’ attorney seem incredulous as they recite the provisions of Colorado law that support their view. “A crime victim,” they told the court, 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.’” Under Colorado law, the Autobees added, “prosecutors are required to support — not oppose — this right by ‘inform[ing] each victim of’ his or her ‘right to ‘express an opinion at the sentencing hearing or any sentence proposed to the court for consideration” (emphasis in original).

Read Cohen’s piece in full here.

A Public Defender also cites to Cohen’s commentary in a recent blog post here.

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