Nathan Dunlap attorneys seek public input on execution plans
Attorneys for condemned killer Nathan Dunlap are urging the Colorado Court of Appeals to shed light on how an execution would be carried out in Colorado and require public input on the process.
Dunlap's legal team contends that a Department of Corrections document spelling out details of precisely how an inmate would be executed should be tossed out because it was compiled without public input.
James Kilroy, one of Dunlap's attorneys, told an appeals court panel earlier this month that the issue boils down to: "Is CDOC able to establish secret procedures for carrying out death penalty by lethal injection?"
Arguing on behalf of the state, Assistant Attorney General Chris Alber said execution procedures fall under the duties of the DOC director in managing the department. That exempts the document from rules requiring public input, Alber said.
In an opinion last year, a Denver District Court judge agreed with that view.
The document, known as Administrative Regulation 300-14, describes procedures for carrying out "the death penalty by lethal injection in a professional, humane, and dignified manner. . ." and much of it is secret, including which drugs would be used to kill Dunlap and the dosage of each.
The public portion of the most recent version — the document is updated periodically — was signed June 1, 2011 by late DOC Executive Director Tom Clements. Clements was killed at his home last month.
Just one week before his death, Clements sent a note to Colorado pharmacists asking for help securing sodium thiopental, the barbiturate general anesthetic that is used in lethal injections.
Under state law, the department must carry out executions with "a lethal quantity of sodium thiopental or other equally or more effective substance sufficient to cause death."
During the April 1 argument before the appeals court, judges questioned attorneys on both sides about why execution procedures are, or are not, deserving of public input. A decision is expected soon.
"I think those are issues of paramount public importance," Kilroy said. "As a community, I would hope that we care about terminating lives in the most humane way possible."
Philip Cherner, another Dunlap attorney, said this week that opening up the process of determining execution protocol is vital to the public's understanding of the death penalty.
"We think the public should know what this is all about, and have access and input into the process," he said.
Alber said the DOC "does not concede" that the public has the right to comment on execution procedures. If there is public interest, then the legislature must create a law that calls for public input, Alber said.
In the meantime, the DOC director has the job of putting the procedures in place, just as the director determines how and where inmates are housed to carry out their sentences.
In 1996 Dunlap was convicted and sentenced to die for killing 17-year-olds Ben Grant and Colleen O'Connor, 19-year-old Sylvia Crowell and 50-year-old Margaret Kohlberg during a 1993 robbery of a Chuck E. Cheese's restaurant in Aurora. He also wounded another employee before making off with about $1,500 in cash and game tokens.
Dunlap is now the longest-serving of Colorado's three death-row inmates. Dunlap moved significantly closer to execution in February when the U.S. Supreme Court declined to hear his appeal. That cleared the way for an execution date to be set.
Last week, Arapahoe District Judge William Sylvester scheduled a hearing for May 1 to designate a week during which Dunlap will be executed. Under state law, the final date of the execution is selected by the head of the DOC and must be set between 91 and 120 days from the date of the hearing at which the execution date is set.
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