Montour murdered his infant daughter and was sentenced to life without possibility of parole. Contrary to the anti-DP mantra that such a sentence guarantees one will not kill again, Montour did. On October 18, 2002, he murdered Sergeant Eric Autobee within the Limon Correctional Facility.

Colorado has a fairly standard death penalty law requiring that at least one aggravating factor from a statutory list be proved, that mitigating factors not outweigh the aggravating factors, and that based on the factors the jury will decide whether to sentence the defendant to death or life imprisonment.

The Colorado statute also has a unique feature that if the defendant pleads guilty he waives the jury at the sentencing phase. Why that requirement was included I don't know, but Montour was advised of it and pleaded guilty fully aware that he was waiving the sentencing jury. The prosecution alleged and the court found five statutory aggravating factors: (1) murder while imprisoned for another class 1 felony (murder); (2) previous conviction of a class 1 felony involving violence (murder); (3) killing a peace officer; (4) lying in wait; and (5) felony weapon possession. The prosecution wisely withdrew the problematic "heinous, cruel, or depraved" factor before trial.

As Orin notes, the structuring of what rights are waived by a guilty plea is up to the legislature to define. If Colorado wants to condition allowance of such pleas on also waiving the Ring v. Arizona, 536 U.S. 584 (2002) right to have a jury determine the death-eligibility facts, nothing the Constitution forbids that, so long as the defendant knows what he is giving up.

The Colorado court supported its holding with a weak argument that the linkage "compromises the defendant's exercise of his Sixth Amendment right to jury sentencing on the facts essential to the determination of death penalty eligibility...." As applied to Montour, this logic, thin enough on its own, requires a premise that he had a Sixth Amendment right to give up here. The court proceeds to find that he did by misdefining "eligibility" within the meaning of the Apprendi line of cases.

It is strange and disappointing that the Colorado court would mess this up, because they got it right for noncapital cases in Lopez v. People (2000) 113 P.3d 713, a case cited by the U.S. Supreme Court in footnote 17 of Cunningham v. California. In Lopez, at 731, the court noted that as soon as one aggravating fact has been found in a way that complies with Blakely (jury finding or admission) or is exempt from Blakely (prior conviction), the Sixth Amendment is satisfied, the defendant is eligible for the upper punishment, and the judge may find any other facts to inform his or her decision as to whether to actually impose the upper punishment.

The eligibility threshold for the death penalty law is crossed when one statutory aggravating fact is found. With no other facts found, the sentencer could legally impose the death sentence. Montour is made eligible by the fact of his prior murder conviction, which is exempt from the Apprendi-Ring-Blakely jury requirement. The law requires further value judgments about whether the aggravating facts outweigh any mitigating facts and whether to actually impose the death sentence, but these judgments are not fact-finding. "Ring only implicates the finding of aggravating circumstances, and not the process of weighing aggravating against mitigating factors. Of particular import is that jurisprudence which distinguishes those elements of the sentencing process which make a defendant death-eligible from those elements involved in selecting those death-eligible defendants who actually will be sentenced to death." Oken v. State, 378 Md. 179, 209 (2003).

Unlike the Maryland Court of Appeals, the Colorado Supreme Court included the "weighing" in the eligibility determination. What counts for eligibility for the purpose of the Apprendi line is a federal question, as California found out the hard way in Cunningham. Colorado should take this up on certiorari.