On November 29, 2015, I appeared on Fox News’ America’s News Headquarters (@ANHQDC) with Host Patti Ann Browne (@pattiannbrowne) and colleague Eric Guster (@EricGuster) to discuss Friday’s Planned Parenthood shooting.
Robert Lewis Dear is accused of murdering University of Colorado Police Officer Garrett Swasey and two others after a shooting at a Colorado Planned Parenthood clinic. At least four other officers and five civilians were also injured.
During the appearance, we discussed the “domestic terrorism” implications, possible Criminal Law Defenses and whether we thought this would be prosecuted as a Death Penalty case.
First, Section 802 of the USA PATRIOT Act (Pub. L. No. 107-52) expanded the definition of terrorism to cover domestic terrorism as opposed to just international terrorism. A person engages in domestic terrorism if they do an act dangerous to human life that is a violation of the criminal laws of a state or the United States, if the act appears to be intended to: (i) intimidate or coerce a civilian population; (ii) influence the policy of a government by intimidation or coercion; or (iii) to affect the conduct of a government by mass destruction, assassination or kidnapping. Additionally, the acts have to occur primarily within the territorial jurisdiction of the United States and if they do not, may be regarded as international terrorism. Section 802 did not create a new Federal crime of domestic terrorism. It did, however, expand the Federal government’s powers to investigate domestic terrorism.
The Department of Justice has already announced they consider the act “domestic terrorism” which has triggered the Patriot Act and allowed the Federal Government to dedicate resources to the investigation.
Additionally, as discussed, I believe this will be a Colorado State prosecution and remain in the Colorado State Courts. Essentially, Colorado is a state which still has the death penalty. Colorado is more than capable of prosecuting the case and has the applicable laws to punish the Defendant with death if appropriate.
Moreover, we agreed that Defendant will certainly plead Not Guilty by Insanity. In Colorado, a person is insane if the person is suffering from a mental disease or defect that makes the person “incapable of distinguishing right from wrong.” See C.R.S. § 16-8-101. I don’t see any other possible defenses since the Defendant was caught red handed.
Finally, we discussed the Death Penalty and whether we thought it would be sought. In order for the Prosecutor to seek the death penalty, a grand jury will have to find special aggravating factors which are found in Colorado’s Death Penalty law. While I do believe that this will be a death penalty case, it doesn’t mean that the case must go to trial. Prosecutors always have the discretion to plea bargain cases and a possible plea bargain could be Life in prison or Life without parole. The death penalty is very difficult to secure as evidenced by the recent James Holmes trial where the jury opted for life in prison instead of death after convicting Mr. Holmes of killing 12 people and wounding 70 others when he opened fire in a crowded movie theater in the Denver suburb of Aurora. Additionally, a case that resolves with a plea bargain instead of a trial saves governmental resources and avoids putting the victims’ families through a very difficult and emotional criminal justice process.