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District attorney candidates offer death penalty context amid Frazee case

Posted at 10:28 PM, Jul 29, 2019

COLORADO SPRINGS — If Patrick Frazee is found guilty at his murder trial scheduled for later this year, prosecutors can no longer seek the death penalty.

Fourth Judicial District Attorney Dan May and his team opted not to file a motion in pursuit of capital punishment for the murder of Kelsey Berreth.

State law gives prosecutors nine weeks from the time a plea is entered to decide. The deadline was Friday, and prosecutors did not file that motion.

"It's one of the weightiest decisions that a district attorney makes, and it's one that affects the entire community and certainly the case," May said at a previous press conference.

So, how did his office come to that conclusion?

A spokesperson for the district attorney's office wouldn't comment on why they chose not to pursue the death penalty, instead saying May will comment on it at Frazee's next hearing in August.

But with May being term-limited in 2020, News 5 sat down with the Republican candidates vying to fill his seat: Michael Allen and Mark Waller.

Allen currently works as a senior deputy district attorney in May's office. Waller, a current El Paso County commissioner and former state legislator, has prosecutorial experience in both Pueblo and Iraq.

"There's the legal analysis where we look at the statute that sets out what the aggravators and mitigators are for a death penalty prosecution. But you also have to think about the practical side of it," Allen said. "Is the case strong enough to survive a death penalty analysis?"

State law would have required prosecutors show Frazee committed what's known as a 'statutory aggravator', like killing Berreth for financial gain or committing an especially cruel murder.

Both candidates said they would then consult the victim's family, but ultimately, pursuing the death penalty comes back to the facts of the case and whether they're strong enough.

"Then, you also have to look at your likelihood of success at trial. You have to look at, 'If I put resources to this, where is that going to impact resources elsewhere?' I think you have to look at all those factors," Waller said.

A death penalty trial is completely separate from the murder trial and would require a unanimous verdict. In Colorado, the death penalty just isn't used all that often either.

Since the death penalty was reinstated in 1975, the state has executed only one inmate. Three inmates currently sit on death row.

In 2012, though a jury easily convicted James Holmes on murder charges for his killing of 12 people and injuring dozens more during the Aurora Theater shooting, prosecutors were unable to convince a full jury for the death penalty.

There have been several attempts at repealing the death penalty through state government, but they've failed.

Executions also prove to be expensive. The fiscal note accompanying a bill to repeal the death penalty in 2019 estimated the cost around $425,000 for the public defender, alternate defense counsel, the department of corrections and judicial costs for a single case. That does not factor in costs for the district attorney's office and appeals.