Dan Caplis Show, George Brauchler, August 18, 2014

Station:   KNUS, 710 AM

Show:      Dan Caplis Show

Guests:    Brauchler

Link:       http://dancaplis.podbean.com/

Date:       August 18, 2014

Topics:    Cable News Network (CNN), Governor John Hickenlooper, Nathan Dunlap, Death Penalty, Reprieve, Clemency, Death Warrant, Todd Shepard, Russia, Ukraine,

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HOST DAN CAPLIS:  […] George Brauchler doing a great job as DA out in Arapahoe County, and that’s how we normally refer to it — Arapahoe County — but of course, it includes Douglas, Elbert and Lincoln Counties, as well.  Nine-hundred-thirty thousand residents, and often seems to be  — the honorable George Brauchler, kind of the center of the universe, just so much seems to happen in Arapahoe County.  And, obviously, the theater case very much on your docket right now,  we won’t talk about that this morning. But [I] appreciate you joining us, because you stood up, I thought, so very well for the people of Colorado, for the victims of Nathan Dunlap, when you stood up to Hick when he started going down this ‘reprieve’ road, where it eventually ended up.  And I appreciate the fact that you’re now speaking out about his comments to CNN.  So, Craig’s here also. Welcome to the show.  And if you would, just tell folks your reaction to what you heard in that CNN sound—not yet aired publicly, but we’ve heard it, fortunately, thanks to Craig and Todd Sheperd.  Just your reaction to all of that.

ARAPAHOE COUNTY DISTRICT ATTORNEY, GEORGE BRAUCHLER:  Well, first, hi Dan and Craig, and thanks for having me on.  I love being on the show.  Um, I will tell you that I guess I probably, like you guys, thought after the Governor punted on this back in May 2013, that this was a possibility.  But I still had a lot of hope, as probably the victims did, that a change in Governor would lead to a greater adherence to a rule of law from the jury’s verdict from back in 1996.  But then to hear him articulate to people who I presume he thought were favorable to him [CNN filmmakers], based on their questions and their demeanor with him in this audiotaped interview, um, I was offended — offended that he would commit himself to this path.  And I don’t care what his campaign says about this being a quote-unquote ‘hypothetical’ — it was not hypothetical.  It was a discussion about specific people — him, Tancredo, Dunlap.  These weren’t pretend facts that may not come into existence.  This was the status of things today. And to hear him, then, make that pledge, I was offended.  And my guess is he never shared that with the victims either.  And if you’re going to come out and say something like that, — and I agree with Craig, I think he’s obligated to do that to Colorado before they decide whether or not to cast a vote him — I do think he’s obligated to tell the victims, “This is the path I’m on”, instead of leading them to believe that some future governor may actually do the right thing, here.

GUEST HOST CRAIG SILVERMAN:  George, the Governor is certainly entitled to his own opinion.  And I think you are feeling the same way that Dan and I do, that reasonable people can disagree about capital punishment.  But you are not entitled to your own set of facts.  I don’t know all the family members of the many victims in the Chuck E. Cheese massacre.  But you do.  You’re responsible for that prosecution.  Jim Peters unfortunately passed away last year but I know he knew all the victims’ families. Eva Wilson, who prosecuted that case with Jim Peters, she’s still alive. She works in Jefferson County as a prosecutor now. I know you’ve spoken to her.  When John Hickenlooper tells CNN that half of the family members of the victims vigorously opposed capitol punishment, was that a true statement on his part?

BRAUCHLER:  No. No, it wasn’t accurate.  I mean, maybe he believes that. And maybe his concept of fractions is ‘anything less than 100% is 50%’,  But that is not it. And I wish I could remember the exact numbers.  But having spoken with Eva multiple times, having met with some of the victims, —we had a guy in our office, Matt Milaro — a superstar — generate the document that tried to fight the clemency sought by Dunlap’s attorney, um, it was something on the scale of, like, 17 in favor of death, 4 opposed.  It wasn’t anywhere — and it may even be less than four.  But it wasn’t anywhere close to the half that the Governor said.  And I told you this, Craig, on your show, if you go back and listen to the Governor’s   statements at the podium in the Capitol when he was punting on this, he announced that Coloradoans were evenly split on this issue, only to find out the next day that the Quinnipiac people polled Coloradans and it was more like 70-30 split, or 2 to 1.  I’m not sure that fractions are his strong suit.

CAPLIS:  Yeah, and George, I’m not asking you to comment on this, obviously. But the truth is, the reality is, this guy just makes things up, whether he’s lying to the sheriffs or he’s making up — he’s telling falsehoods about where the victims stand, or whatever. He routinely just makes things up.  But, tell us if you would, because you would, George, because you work so closely with victims all of the time, how does this kind of behavior on the part of the Governor impact victims? We heard Mr. Crowell speak up, as you know, to CBS4. He called the Governor a coward for the way he’s handled this.  How does this impact victims?

BRAUCHLER:  Well first off, I mean, just to put this in perspective, because I think Colorado has been misled by the statements of the Governor into believing that he was obligated to take action one way or the other on this issue — to see that Dunlap was executed.  And that’s not the way that Colorado law works. There is no death warrant. The Governor doesn’t have to wring his hands and ask for absolution before he signs a piece of paper.  The bottom line is: the Court orders it.  They imposed a “death week” of August 8 to I think the 14th of 2013— just about a year ago, this week. And the Governor could have just left town.  He could have just gone to his bar, or done something else.  And this would have happened.  And instead, he chose to intervene.  And so, in doing that, he summons these victims into his office and tells them— leads them to believe that one way or another, there’s going to be closure.  And I think that’s all victims, 20 years removed, want.  I think the vast majority of them wanted the sentence to be imposed.  But, my God! — they want to have this thing closed off for them.  And instead of granting clemency — which I would’ve opposed, but at least if would have been final — instead of allowing the execution to go forward, which again would have been finality, he brings them in to say, “I just can’t make a decision.”  And sends them back into the rest of their lives, having renewed all the horror, trauma, and emotions they had dealt with 20 years before.  And that is just unforgivable.

CAPLIS:  That’s right

SILVERMAN:  I agree.  The frustrating part about the capital punishment are the massive delays.  They are wrong and unconscionable.  And I would think a responsible governor would work to minimize those delays. What John Hickenlooper did was just extend Dunlap out indefinitely — give him a massive continuance. That’s why I thought it was so hypocritical on his part.  But let’s give him the benefit of the doubt.  Let’s say that during the temporary reprieve, he was struggling with the death penalty.  Well, when he sits down in February with CNN, he has made up his mind.  He is a leader of the anti-death penalty crowd.  At that point, once he’s made up his mind, shouldn’t he say it loud and say it proud?  And I’ll tell you, the people on the left — David Lane — will come in and say, “He had a perfect opportunity to go to the legislature and repeal capital punishment.” But he didn’t have the courage to do that.  So, it really is a weak position the governor is in.  George, speak to that.


BRAUCHLER:  Well, I mean —. Listen, this should not be a political issue.  This should be a rule of law issue.  And you’re right when you say there are good people — people in my family —who are opposed to the death penalty because they are pro-life, start to stop. And that is a principled, moral position that I can respect.  But the path that the governor has taken is again, just classic Hickenlooper — this waffling,  indecisive weakness where, and again, — I think Colorado needs to come to grips with the idea that leadership is not being in the room when other people make decisions.  It’s got to be something where you take us a certain direction, or encourage us to go a certain way because you have these strongly held beliefs.  Nothing you whisper to a CNN crew in an unpublicized, unpublished documentary, off camera, can be considered to be that kind of leadership. What I think this guy needs to do, is if he truly believes this, if he feels morally bound that the death penalty is not right, why wait for the election?  Take to a podium today, at noon, and say, “I’m so sick and tired of that DA Brauchler calling me out on this!  I’m granting clemency —not just for Dunlap, but I’m going to do it for SirMario Owens and Robert Wray.  Why wait for this long, extensive legal process to go through?  I’m going to do what I think is right today!”

CAPLIS:  […] I think that last point is vital, because in my mind it shows something that I think is absolutely inexcusable — even in the rough and tumble world of high stakes politics.  And that is, when an public official puts his personal interests, i.e. his political calculations, above the interests of victims who have had family members murdered, I consider that — one man speaking — to be immoral.  I think if anything should be sacred, it is, “Okay, these people have had their children killed? I have to put their interests in justice first, above my political calculations.”  And obviously, that’s what this is.  This is a political calculation by Hickenlooper that he is better off by going this reprieve route, than he is, you know, doing what the law and justice really demand.

BRAUCHLER:  Yeah, I agree.  I think, too, the fact that — and again, this is just so weak —makes this decision.  You can see them, kind of in your mind, sitting around a table deciding, “Wait a minute!  If we do this, this group will be upset. If we do this, this group will be upset. Let’s not offend either. Let’s take that middle of the road that we always take, and not make a decision.”  And when it blows up so horribly, he then, days later,  comes out and announces, “Well, we knew this would happen.  And that’s why my decision to not make a decision was one of courage.”  [laughs] And it’s like, “What are you talking about?”

CAPLIS:  Just amazing. George, you might not be able to comment on this, but it just popped into my head.  Craig has been hammering on it for days.  And that is:  What about the potential impact of this on the theater case in the sense that if the timing rolls out in such a way — and I think it will — that there’s an ultimate outcome to this case, you know — well, if Hickenlooper is re-elected which we hope doesn’t happen — he would be in office when there is an eventual outcome.  Do you think it factors into the thinking at all in the defense, etc, in this case that John Hickenlooper, if he’s in office, might just grant clemency to Holmes.

BRAUCHLER:  Um, yeah, I don’t want to comment on the theater case, but if I were Mitch Morrisey I would have concerns  about the Fero bar murder death penalty case.  I would wonder how that has an impact on them.  And my guess is that Mitch Morrisey has been in intimate contact with the family members of those deceased victims in that cold blooded murder, and they have probably expressed concerns, too, about why would we go through a process for 15 or 20 years if it just takes some weak-in-the-knees Governor to say, “I’m just not going to follow the will of Coloradoans who have passed this law time and time again.” I can imagine that that would have some impact on Mitch’s case

SILVERMAN:  Right.  And it already has impacted a Colorado case.  I had the prosecuteor on from Freemont County, Tom LeDieux, I think is his name.  And he had the case of Jacob VanWinkle.  This is an ex-con from Indiana who slaughtered —uh, first he raped the children in the house, three children.  And then he murders their mother, murders two little kids. The sixteen-year-old runs to a neighbor’s house.  Jacob VanWinkle is caught after perpetrating this triple homicide and all these sexual assaults.  And the prosecutor said, “You know, we talked about it. But given what Hickenlooper did, which we had to consider, we decided to let him plead guilty without the death penalty.”  So, it’s already impacting cases in Colorado.  And it’s not just that John Hickenlooper has come to the other side.  He adopts everyone of their arguments, if you listen to that tape.  He says the death penalty system is racist. He says that it’s way too expensive, the delays.  And then he rips on you, George Brauchler, with the encouragement of CNN — says that it’s arbitrary and capricious.  Hell, look at the 18th Judicial District.  They have most of the death penalty cases, which I think is a matter of bad luck, more than anything else.  But he adopts all of their arguments.  He also says that 140 death row inmates in the modern death penalty have been exonerated.  That’s a wild stat that I don’t think bears up under scrutiny.

BRAUCHLER:  Outrageous.

SILVERMAN:  So, here’s a guy who takes every argument of the anti-death penalty crowd and he exaggerates them even further.  I urge people to listen to these 40 minutes of John Hickenlooper talking to CNN.

CAPLIS:  And Mr. DA, last words, here.  I appreciate your time today, and anything else you’d like to pass along to folks, please do.

BRAUCHLER:  Um, I wish I could —.  Yeah, again, this shouldn’t be a political issue.  And what I find most ironic about the Governor’s threat to grant clemency to Dunlap is, the guy that punted on this issue and tied it —tied it— to the occurrence of another political event, that being the election of the governor — the next governor, — for him to then say it’s offensive to turn someone’s life into a political football. It’s like, this guy is tone deaf on issues of public safety, criminal justice, and frankly, communication.  It doesn’t make any sense to go to Coloradoans and try to argue that what he’s done is a matter of principle or conscience.  It is political expedience, and it’s offensive.  I would have had more respect for this guy if he stood up today and said, “I’m making a decision, and I’m going to have to face the consequences but this is what my heart tells me is right.”

CAPLIS:  Right.

BRAUCHLER:  But you and I both know, he’s never going to do that.

CAPLIS:  That’s right.  George Brauchler, doing a great job out there.  Thank you, Mr. DA.  I appreciate the time today.

BRAUCHLER:  Thanks, Dan.  Thanks, Craig. Talk to you guys later.

CAPLIS:  See you! Yeah, and I fully expect, if I’m betting the truck, I’m betting that you’ll see George in state-wide office sometime in the not-too-distant future.  Just, smart guy, great skill set, gutsy, willing to step up there,  tell it like it is.  You know?  There’s not a lot of that going on.

SILVERMAN:  Yeah.  And he’s a military veteran.  He served his country in Iraq.  George Brachler, quite an impressive person.