Only The Harm

Bob Autobee was a corrections officer. His son, Eric, followed in his footsteps, and was murdered by Edward Montour, a prisoner already doing life.  Bob wants to speak at the sentencing of his son’s killer, as is his right under law as a victim, but a legal battle is at hand to stop him, to silence him.

Via Andrew Cohen at the Atlantic:

Arapahoe County District Attorney George Brauchler . . . wants to block one couple’s efforts to speak out against the death penalty for the man who murdered their child. Brauchler has filed a motion in a pending case seeking to bar Bob and Lola Autobee from participating in the sentencing phase of the trial of Edward Montour, their son’s killer. The law only guarantees the rights of victims to “discuss the harm that resulted from the crime,” Brauchler argues.

What distinguishes the Autobees is that they are against the death penalty. They want to speak at Montour’s sentencing not to appeal for his death, but for his life.  District Attorney Brauchler won’t stand for it.

Colorado law “only guarantees the right of the victims to discuss the harm that resulted from the crime,” Brauchler argues, and this limits “evidence from the victims to the characteristics of the victim and the impact of the crime on the victim’s family.” It is “not the court process that can be attacked by the victims,” prosecutors assert, before claiming that Montour’s Eighth Amendment rights will be implicated if the Autobees speak out in his favor.

The Autobees have offered a reply to the prosecutor’s stance:

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 around 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.

Brauchler’s rejection of the Autobees position, as the survivors of their son’s murder, reflects not merely an argument about victim’s rights that fails the laugh test and offends more serious sensibilities about the role of victims in the process.  Brauchler’s position co-opts the victims’ rights argument as a supplement to the prosecutorial role; victims exist solely to bolster the prosecution.  If they don’t, they deserve neither rights nor to be heard.

Where are the victims’ rights advocates?  Andrew Cohen throws down the gauntlet, and Kate Lowenstein, the program director of the group Murder Victims’ Families for Human Rights, and Kristy Dyroff, of the National Organization for Victim Assistance, defend the rights of victims to express their views admirably and without hypocrisy.

What of the loudest and most strident victims’ rights advocates, like Paul Cassell?

As Cohen concludes:

It’s not the Autobees who are the outliers here. It’s the prosecutor. He can hardly purport to serve as the “conscience of the community,” or claim he is following  clear Colorado law by ignoring the wishes of the one family in the state that has earned the right to speak at the Montour trial. Victims’ rights mean rights for all victims and not just those who toe the government’s line.

I am not, and never have been, a fan of victim impact statements based on the position that criminal law vindicates societal goals, not individual feelings.  But if victims get to speak, they get to speak whether they back up the prosecution’s quest for death or plea for the life of the murderer.  Brauchler’s position is offensive, outrageous and morally bankrupt.  Worse, it’s the position of a person in whom society reposes prosecutorial discretion.

See also Gideon’s view here, as I’m very late to this party.

9 comments on “Only The Harm

  1. John Barleycorn

    George is a solider.

    This is his first death penalty case. He needs his “conservative” street creeds regardless of how this turns out he’s got um now.

    He was ROTC in law school served in Iraq and notably prosecuted a solider from Fort Carlson who shot an Afghan Commander in his jail cell.

    He ran and lost last go around in a close partisan race.

    That kid that shot up the Aurora theater is also squarely on his desk I do believe.

    See George plot his political aspersions in real time.

    My guess is he is thinking State Senator in 2017/18. Justice be damned or Justice be served?

  2. N

    George was one of my professors in law school, for “Litigation Technology.” Which, incidentally, was about making effective use of technology during trial, and not about iPads and SEO.

    He was a good professor, a likable guy. And a true believer type prosecutor in every sense of the word. If you were charged, you were guilty. I’m actually saddened to see this from him, I though better of him.

    1. SHG Post author

      An important lesson; much as you may like someone in one role, he may not be nearly as likable a fellow in another, especially where it involves power and the ability to kill people.

      1. Charlesmorrison

        Like when you meet good people, good attorneys that are helpful to you as a young lawyer (which I am). Then they get a judgeship and you wonder where their wisdom went as you hear about and see first-hand some decisions they make. It’s interesting how different a position/ role in life can cause the same person to act contrary to what you “knew” of them.

      2. Jim Majkowski

        Lincoln was once asked, what is a measure of a person’s character? And he says, you know, “My experience is that most people think that the true measure of a person’s character is how they respond to adversity. “I have found,” Lincoln said, “that the real test of a person’s character is to give them power. And I have been surprised how often I have been disappointed by people’s character when they have been given power.”

        1. SHG Post author

          A friend of mine who is an elected official calls it the hat. They put on the hat, and it changes everything.

  3. Esther Cook

    I bleed for you for I am also a family member of a murder victim who was “too good for this world.” My nephew Elias’ friends learned not to compliment him on his clothing because “he would give you anything he owned that he thought you liked.” I cried for years, not only because I will never have grand nephews and nieces from him, but also because the whole world lost out badly when we lost him.

    But I can honor his memory. My nephew would have agreed strongly with you. And it just so happens that I can honor my nephew by doing something about this. I am a Republican activist and precinct leader. I made it to the State Republican conventions in 2008 and 2014. I vote for/against people like George Brauchler. I can affect his career. So he may well listen to me where he would not listen to you.

    Caucus Day is March 4. Whichever your party–show up and vote.

    1. SHG Post author

      Thank you for sharing this with us, and for reminding everyone that the first line of defense is to vote.

  4. Steven Sweat

    It is amazing how often the rights of victims are touted by prosecutors and judges unless and until their opinion conflicts with what they want the “intended result” to be. Thanks for the share.

    [Ed. Note: Changed the name and deleted the URL; this isn't a marketing opportunity.]

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