JUSTICE : Colorado's Death Penalty Drought Nears 30 Years : Prosecutors trying McVeigh, Nichols in Denver are trying to find out why state's jurors are so reluctant to mete out execution.

By RICHARD A. SERRANO

May 1, 1996 12 AM PT

TIMES STAFF WRITER

DENVER —

It has been nearly 30 years since the people of Colorado put a man to death--three decades in which this state has stubbornly refused to join the growing parade of legal executions being carried out across the United States.

So long, in fact, that the last time a prosecutor persuaded a jury to put a man on death row, she practically had to beg.

“If not now, when?” Eva Wilson pleaded before a jury deciding the fate of a 21-year-old convicted of killing four people at a pizza parlor. “If not this crime, when? If not him, who?”

But this state has never before had prisoners like Timothy J. McVeigh and Terry L. Nichols. And government lawyers, forced to try the Oklahoma City bombing case in a place disinclined to mete out the ultimate punishment, are preparing to do social and legal research to find out just what it might take to win a death sentence here.

They will find that Colorado lawmakers recently switched to a three-judge panel system to decide death sentences in state cases because prosecutors could seldom get all 12 jurors to agree--a requirement that stands today in the federal court system, where the bombing case will be heard.

They will learn that Colorado juries give real weight to mitigating factors in judging responsibility for a crime and appropriate punishment.

And, more than anything perhaps, they will find that while polls show Coloradans are in favor of capital punishment, once inside the jury room they often opt for life sentences over death for even the most serious crimes.

That is a long way from the people of Oklahoma, who, like those in Texas and Florida, have not been shy about punishing death with death.

“Defense lawyers in the Oklahoma bombing may have gotten a double bonus in getting the trial moved here,” said Bob Gallagher, a prosecutor in Arapahoe County, who in a 28-year career has managed to win the death sentence in only one in six capital cases.

In addition to being so painfully familiar with the crime’s personal impact, “maybe jurors in Oklahoma are more conservative, more law-and-order-oriented, more death penalty-prone than jurors in Colorado. And I don’t know why. Is it something in the water? Or the altitude? Or is it just our plain old attitude?”

The difference is so striking because the states share a border. But socially and demographically, they lean in different directions.

In criminal justice, as in its religious traditions, Oklahoma inclines toward its neighbors in the Bible Belt of the South, where the individual is expected to reap what he sows--good or bad. Colorado, more liberal politically, leans toward the more communitarian view of its neighbors in the Midwest, which accepts more shared responsibility, community or family, for the acts of the individual.

The difference shows up strongly when the act of murder is to be judged.

While none of the recent cases in Colorado matches the horror of the Oklahoma City bombing, where 168 people died and 600 others were injured, Denver does have its share of the kind of vicious crimes that plague many major metropolitan areas--and that draw death verdicts elsewhere.

Kevin Fears killed two men and wounded another after first kicking them with his feet and beating them repeatedly with anything he could grab, including a chair and a telephone. His sentence: life.

“I have a real problem with what’s happening in this state--a real problem,” said Steve Curtis, an insurance salesman who survived two gun shots to the back of the head during Fears’ killing spree.

“I’m living in a state where the innocent people get death sentences by the criminals, and the criminals get life sentences by juries.”

Timothy Vialpando fatally shot a deputy while trying to break out of County Jail. He had a 15-year history of jail escapes, rapes and assaults, and he killed the deputy while on trial for raping a 12-year-old girl. His sentence: life.

“When I walked into that jury room, it was like I had steel bands wrapped around my chest. You’re literally in an altered state,” said Bob Ewegen, deputy editorial page editor for the Denver Post, who served as jury foreman in the Vialpando case.

Ewegen believes in capital punishment--the Post does not, he said--but was persuaded to vote for Vialpando’s life after other jurors were bothered by the defendant’s mental health problems, troubled childhood and other mitigating factors.

“Timothy McVeigh’s life is of no greater value than Timothy Vialpando’s,” Ewegen said. “But prosecutors could be in trouble here. This will be a difficult case to make.”

Just last week, a jury ruled on the fate of triple murderer Albert Petrosky. His victims included his wife and a deputy sheriff shot in his patrol car. While a phalanx of deputies sat in the courtroom, defense lawyers brought up Petrosky’s abused childhood and the loss of his 10-year-old son.

The sentence Wednesday, after just two hours of jury deliberations: life.

“I think we are more open-minded out here,” said the Rev. Jim Sunderland, a Catholic Jesuit priest who serves as a chaplain at the Denver County Jail and heads the Colorado Coalition to Abolish the Death Penalty.

The last man executed in this state was Luis Jose Monge, convicted of killing his wife and three of their children. But Monge had asked to be put to death.

Since his execution in 1967, the gas chamber has been removed to a state prison museum. The state now will use lethal injection. But today, only four men sit on Colorado’s death row.

Oklahoma, a state much smaller in population than Colorado, has 136 people awaiting death. Three were executed last year.

Sunderland’s coalition plans to meet this month to discuss how Colorado’s religious communities can begin organizing opposition against the death penalty for McVeigh and Nichols, should they be convicted. And Sister Helen Prejean, the Catholic nun in Louisiana who wrote the book “Dead Man Walking,” will visit Denver for a fund-raiser later this year, just before jury selection is expected to begin.

Today, attorneys in the bombing case will meet in a pretrial hearing over the death penalty, with defense lawyers hoping to get it thrown out as a possible sentence if McVeigh or Nichols are convicted. A key argument is that President Clinton and Atty. Gen. Janet Reno prejudged their clients by saying they would seek the death penalty even before any arrests were made.

Already, the defense attorneys are appealing to basic human instincts against the taking of a life.

Michael E. Tigar, who represents Nichols, argued that a life sentence can be worse than death, recalling the biblical story of the mark of Cain. “It was so nobody would kill him,” Tigar said. “That he would have to go and remember all those years that he killed his brother.”

But others believe that passionate arguments will not win souls on the bombing trial jury, not even here in Colorado. Floyd Ciruli, a Denver pollster, said as many as 80% of the people here support the death penalty, and this may be the case in which they stand behind it.

Steven Gayle, a defense attorney who squared off against prosecutor Wilson in the Walter Dunlap case, says he does not believe a Colorado jury will be eager to execute the Oklahoma City bombing defendants, should they be convicted.

“Colorado juries have a lot of common sense. They are decent people. And it’s certainly a victory for the Oklahoma City defense to be here, because we don’t seem to be in any huge rush to fill our death rows and start killing people.”

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Executions by State

Here is a list of executions by state since the death penalty was reinstated in 1976.

Texas: 106

Florida: 26

Virginia: 32

Louisiana: 23

Georgia: 20

Missouri: 19

Alabama: 13

Arkansas: 11

Delaware: 8