• HIGHLIGHTS
• Deciding to prosecute a juvenile as an adult
• The legal justification for felony murder
• The agony of parole hearings for victims' families
• Why Colorado's elimination of juvenile life without parole should not be retroactive

You fought hard against retroactivity of the law that changed life [without parole for juveniles] to 40 years, [before eligibility for parole]. Tell me just in a summary -- then I will let you go through each one of them -- what were the reasons that you stood against it?

I had two concerns. One was the way it was happening: that the Legislature was doing it without notifying the family members of the victims of the homicides we were talking about. And two, I believed what they were doing was unconstitutional in that it violated the Colorado Constitution.

Talk to me about the victims' rights and their concerns.

In Colorado in 1992 we passed an amendment to our constitution, what we called our [Victims'] Bill of Rights. ... In every part of our judicial system we have to notify victims or victims' families in homicides about what is going on in a case. And what the Legislature was doing was going to go back, retroactively, change all these sentences and do that without notifying these victims' families. So they were going to wake up one day and find out that the law in Colorado had changed on them, and even though some had relied on it for 10 years or more, the Legislature was about to pull the rug out from under them without notifying them.

And if they had notified them, would you have agreed?

Well, the Legislature did this in public hearings, and I wanted time to be able to notify them myself, because it was clear to me that the Legislature -- who, by the way, passed the enabling statutes that said somebody that does what I do has an obligation to these people to notify them -- were not going to do it themselves. So I took it upon myself to personally call as many of the victims [and] survivors of the crimes that I dealt with as a prosecutor, that I actually tried myself. I called those people myself to let them know that they were going to be having these hearings in the Legislature, both in the House and in the Senate [Judiciary] Committees.

What was the purpose of that?

So they could be there. They're public meetings, so they could talk about the impact that this change would have on them personally and on their families. And it turned out that about 20 families showed up for the first hearing, and it was a very emotional hearing. They let the victims speak, and the victims laid out for the Legislature exactly what they'd gone through and what has happened to their families since a member of their family had been murdered.

And softening the law -- what would it change for them?

Many of them were opposed to it, because at the time that they went through a trial, which is a very hard thing for a family to go through, ... they understood that the end result would be life without parole, and they felt that they were being cheated by the people that they elected to be in our Legislature. They were going behind their back and changing this law on them, a law that they relied on as family members of somebody that had been brutally murdered.

How do you feel about juveniles, 15 or 16, who get life without parole? Isn't it very harsh?

Juveniles at that age don't get life without parole in Colorado anymore. That law has changed. So the individuals that we're talking about is a very limited number. If you look at the number of juveniles in the age group you're talking about in this country that are serving life without parole, there's over 2,000 across our country. Colorado has around 40. And it's not unusual in the United States; I think 42 states allow judges to sentence juveniles to life without parole. Colorado now is in the minority since the change in the law.

Do I think it's harsh? It is for some individuals. But that's why we look at the cases the way we look at them and determine if this is a case that, first, we file on the juvenile as an adult, and second, do we make them an offer that would allow them to plead guilty to something else that would give them a lesser sentence?

Is everybody entitled to an offer?

No one is entitled to an offer, but it's very rare that we don't make an offer if it's appropriate to do that. Now, you have to understand that some of these cases are torture murders, the murder of children, the murder of very old seniors; some are double homicides. So sometimes the offer carries a lengthy sentence for whomever, be it a juvenile or not. But these are very brutal crimes for the most part.

Do you think that the people that are in prison now who didn't benefit -- the 40 juveniles that are still in prison -- do you feel that they are tougher criminals, harsher criminals than others who did get offers?

Well, there were about 250 juveniles during that period of time in the state of Colorado that were charged with first-degree murder. Now, we're talking about, I think, a 13-year period of time, 250 individuals that were charged with first-degree murder, and now you understand that there's 40 that are serving life without parole. So during that period of time, the bulk of the juveniles that were filed on that faced a potential life-without-parole sentence for first-degree murder did not serve that sentence, did not go to trial. They were offered something that allowed them to plead to a different offense that they got a lesser sentence for.

Explain to me the logic of direct file by the prosecutor of juveniles.

There's two ways for a juvenile to be prosecuted in adult court, and this goes back in our history in the state of Colorado for a long time. A juvenile that is charged with first-degree murder can either go through a transfer hearing [before a juvenile court judge] or can be filed directly into adult court. Those are the two different methods that we have. ...

Anybody under the age of 14 that commits first-degree murder has to go through a transfer hearing, cannot be direct filed on. Anybody above 14, you can hold either a transfer hearing or a direct file. I would say that in my experience, in this jurisdiction, most juveniles that are charged with first-degree murder, that are in that age range that allows us to file direct, are filed on directly. And we haven't had a transfer hearing in a long time.

And why is that?

There's no reason to have one. We're talking about first-degree murder here. We're talking about a reasonable likelihood of convicting the individual of first-degree murder. We don't file these cases on a probable-cause standard; we ethically have to file a case on a standard of a reasonable likelihood of conviction. So this is an individual that we have a reasonable likelihood of convicting of the most heinous crime in our state. So ... it makes no sense to have the transfer hearing.

Even if they're 15 or 16?

It doesn't matter. We're still talking about first-degree murder here. We're talking about tying someone up and torturing them for hours, sometimes, before they kill them. We're talking about killing a 3-year-old, I think, is the youngest victim that we have; the oldest, an 86-year-old woman who was in her home sleeping when she was attacked by a juvenile in the age that you're talking about. These are egregious crimes. ... We do that. We make that decision. Are we going to treat this individual as a juvenile, or are we going to treat them as an adult? I have to tell you, in these kinds of first-degree murders, most of the time we treat them as adults.

No matter what the age is?

Well, the cutoff is 14. Like I told you, ... 14 or below you have to do a transfer hearing. Above 14 you can do one or the other. Transfer hearings are really for repeat juvenile offenders who have been in the system for a long time, chronically, and they have committed a crime like aggravated robbery, and they have a history of committing aggravated robbery. You take that case before the juvenile judge and you say: "Judge, the juvenile system isn't working here. Transfer this person to adult court. This is their sixth, their seventh, their eighth felony." That's what transfer hearings are for: They are for the chronic juvenile offender that no one is getting through to, and it's time to treat it as an adult. ...

Do you feel that the people that are still in prison, that they have a heavier crime record, or it doesn't have to be? It could be the first crime?

Well, we're talking about murder. Many murderers, no matter what their age, don't have a lengthy criminal history. They may have alcohol problems; they may have drug problems; they may be committing the murder to feed a drug habit, that kind of thing. But I think if you look at murder, the crime itself, juveniles or adults, oftentimes they have no criminal history at all, but they've taken someone's life. ...

You are against giving any kind of forgiveness to those 40 people. Is your reason really only the victims, or do you have other reasons?

Well, it was unconstitutional to do. It's against the law of the state of Colorado. I swore an oath when I took this office to uphold the law and the constitution of the state of Colorado. What the Legislature was doing was violating the constitution. That was my position. ... So my reasons for opposing what they were doing were twofold: One, they weren't notifying the victims; and two, what they were doing was unconstitutional. ...

I want to talk to you about felony murder. It seems like a harsh law because it takes the intent out of it; it takes the deliberation out of it. ... How do you feel about that?

Felony murder is a very important theory of first-degree murder. When you have a group of individuals that are willing to get together and commit a very limited list of extremely violent crimes like sexual assault, kidnapping, bank robbery, ... and somebody gets killed in the course of that felony, in Colorado and in most states in the United States, you're held accountable for that death, and you're held accountable in Colorado for first-degree murder. I think that, as far as a deterrent factor goes, if people are going to sit down and decide to go pull a bank robbery, and even if the driver never goes in the bank but he knows his two partners are going in with a gun, and they kill a woman who is doing banking business, then that driver needs to be held accountable, because they may not have pulled that crime, they may not have even attempted it, but for knowing the getaway driver was there. Felony murder is a very important [theory] and goes back long into the common-law statute in the state of Colorado.

But it takes premeditation out of it. Even if somebody is killed accidentally, it doesn't matter; it's felony murder if it's in the commitment of a felony.

If it's in the commitment of not just a felony; in an extremely violent felony, in what we call crimes of violence in Colorado. It's a very limited number of felonies that -- if you're willing to engage in raping a woman and she ends up getting killed in the course of that, that's first-degree murder in Colorado. If you're willing to kidnap a child, and that child dies in the course of that kidnapping, even accidentally, that's first-degree murder. So to just say felony, that's not right. It's a very short list of extremely violent felonies that people often die in. ... If you're committing felony theft and someone dies, that's not felony murder. If you're committing motor vehicle theft and somebody dies, those are felonies, but it's not felony murder. It's a very short list of violent felonies where the Legislature has recognized that they are so violent by their nature that often people get killed during them.

We happen to be interviewing tomorrow the family of a victim, the Palones [whose son, Matt Foley, was killed by Trevor Jones, then 17 years old]. Do you know them?

I don't know them. I think that I've met them and talked to them on the phone, ... but I did not handle that case.

So you don't know the case?

I do know the case.

Is it a legitimate felony murder?

Well, it's a felony murder in the fact that it was in the course of a robbery. It would have been a double murder had the gun not jammed when the juvenile tried to fire it at the other young man that was in the car. ... And a week before, the same gun jammed on him when he tried to kill somebody else. So that's often described as a felony murder. [Jones says] it was an accident, but that wasn't the facts at all. He pointed the gun at another individual, and the gun misfired. So he was there to kill two people. He got convicted of felony murder because he was engaged in a robbery of these two young men, and he was held accountable for the death that he caused.

Editor's Note: Producer Ofra Bikel reviewed the transcript of Trevor Jones' trial and his arrest record and did not find an indication that he had attempted to kill someone the week before or that the gun had jammed while he was trying to shoot Matt Foley's companion.

We happened to cover a few cases of children who killed their parents and received life without parole. Sometimes you have to wonder -- there are mitigating circumstances.

... Well, kids that kill their parents, what you mean to me is they killed two people.

Sometimes one.

... If you say parents, then you've got a double homicide, and any time we have a double homicide anywhere in the state of Colorado, that's a serious offense. Somebody that is responsible for murdering two people -- be they uncles and aunts, be they their mom or dad, be they siblings or be they total strangers -- I don't think the relationship has anything to do with the fact that you have a person that ended two people's lives.

No matter what the mitigating circumstances or what the reasons are?

Mitigating circumstances are taken into account throughout our system: One is in the decision to file directly on the individual; two is in the decision to file the case at all or what charges to file it as. We have second-degree murder, heat of passion, and we often file homicides at lower levels than first-degree murder considering things like mitigation and defenses. And then, of course, as the case is pending in court, it may be a first-degree murder, but we may make an offer to plead to second-degree murder -- which doesn't carry a life sentence -- to second-degree murder, heat of passion, to manslaughter, to criminally negligent homicide, taking into account the person's record, the mitigation and all those kinds of things involved. So there is a chance for mitigation throughout the system up until trial.

Are you personally for or against sentencing juveniles to life without parole?

Personally? I don't have an opinion personally on it. Professionally I understand what it means to a family to be sentenced to a life of going to parole hearings. I've sat in court with young children that will be the person that has to represent that family, the voice for that victim who has been gone for 20 years, 30 years. When you sentence somebody to prison for life without parole, then that family knows where this person will be for the rest of their life. They don't have to go to repeated parole hearings time after time, explaining to a parole board and maybe a new parole board what it meant to their family to lose their father, to lose their child, to lose their grandmother. This is a generational thing that you are sentencing these families to.

You are talking about the victims' families?

The victims' families, which are the people that are often forgotten in this whole discussion. But for me they're the people that mean the most.

Try to put yourself now, for a moment, on the other side -- someone 15 or 16, terrible mistake, does kill somebody, but then is 26, is 36, is 46. People change. What about that?

Well, we have a system for that in Colorado. You can be doing any kind of sentence, and you can petition our governor to have your sentence commuted or to get a pardon, and every one of the individuals that we're talking about in this interview has that right. Every single one of them. ...

How many clemencies were given to these people in the last year?

To these people? I don't think any of these people have served anywhere near the length of sentence that you're talking about. My understanding is you are talking about 40 people, the oldest conviction being somewhere in the early '90s, so these are people that are just beginning their sentence. There's nobody there that's 46, 56, 76 years old. I don't know if any of them have applied for a pardon from the governor, but you're talking about people that have just started to serve their sentences.

But ... those [pardons] do happen. I have met people that have gotten pardons from governors. There's one that works in our courthouse -- a guy convicted of first-degree murder. He got a pardon from the governor. His sentence got commuted to a lesser sentence, which he served and he got out of prison. So it does happen. It's not that it's unheard of.

Some of [the 40 you're talking about] are still in the appeal process, which might grant them a new trial. These are sentences that are long sentences, but they haven't gotten to the point where a governor would consider them for parole. But they have the right to do that.

You have no problem with a new trial even though it may cause a lot of pain with a victim['s] family? ... I mean, let's say somebody is granted a new trial. The family of the victim has to go through the same agony again.

... If there was an error in the trial, and somebody doesn't get a fair trial -- it doesn't matter if they were a juvenile or an adult -- they should be entitled to a new trial. No matter what that puts the family through. ...

[Were the homicides committed by the juveniles currently serving life without parole in Colorado particularly violent?]

... Many of these homicides, unfortunately, I personally prosecuted, and some of these are some of the worst homicides I've ever seen in my career of 25 years: torture murders; murders of a little boy. I had a little 3-year-old boy who was doing nothing but sitting in his car waiting for his mom to come back out and take him home got killed; an 86-year-old woman that was laying [sic] there partially nude; ... a young man that was in there -- he described stalking her like a tiger -- brutally beat her to death. And these are not accidental crimes. These are not, for the most part, felony murders, although there are felony murders along with the deliberate murders. But for the most part these are extremely deliberate, sometimes well-planned, long, drawn-out deaths; long, drawn-out homicides. These are the worst of the worst; there's no question about that.

Why did the law change from 10 [years before eligibility for parole] to 20 to 40 to life without parole?

Originally, at one point it was 10 years before you were eligible for parole; you still got a life sentence, so you could be kept for life, but you were eligible for parole after 10. ... It changed from 10 to 20 to 40 to life without parole for first-degree murder because the people of the state of Colorado got tired of seeing people paroled and get out after they had murdered somebody, committed the most heinous crime in our state.

Even 15-, even 16-year-olds?

... [The recent law changing sentencing so that juveniles now have the possibility of parole after 40 years] was the first time ever in our state where 18 became the magical age where you faced life without parole. ... We had a very famous, unfortunately, murder -- numerous murders -- at Columbine [High School in Littleton, Colo.], the jurisdiction right next to mine. One of those individuals, 18 years and five days old; the other was 17 years, 11 months and about 17 days old. These guys were about five days apart in age. Eighteen was not the magical cutoff for one of them to behave this way and face life without parole or face the death penalty. The other, [who] was only a few days younger, was equally responsible, we would not be able to get a life-without-parole sentence on. I don't see 18 as the magic number. ... It's just an artificial bar that we set. ...

Why are those 40 penalized because it didn't happen to them now? Because now they would get parole in 40 years.

Well, they're penalized and held accountable under the law that applied at the time that they committed their offenses, and that's in Colorado what we base sentencing on. ... You are facing what you were facing at the time you committed the crime.

That's not so. People who got the death penalty were not put to death after the Supreme Court [decision Roper v. Simmons (2005), invalidating the juvenile death penalty] came out, so it was retroactive. ... So why shouldn't that apply to life without parole for juveniles?

In Roper they found a systematic problem throughout the entire United States in the way that people were getting death sentences. ... These people were being deprived of their rights. That's not what this situation is about at all. These juveniles have not been deprived of any of their rights, and if they have they will continue to appeal that. ... I'm not saying that those were all perfect trials, and certainly these juveniles have a right to appeal and post-conviction relief, but there has never been a claim that there was a systematic discrimination against these juveniles. That was our law. Our law was constitutional at the time.

... The case law in Colorado ... is very clear that the Legislature in this situation does not have the legal authority to go in and retroactively change this law. In Colorado it is not cruel and unusual punishment to get life without parole as a juvenile. ... There's never been a claim that giving a juvenile life without parole in the state of Colorado is unconstitutional. That has never been found by our Supreme Court or by the United States Supreme Court. [In] 42 states in the United States, juveniles face life without parole for first-degree murder, so there's no case law that I'm aware of where that has been found to be unconstitutional, like in the [Roper case] that you're talking about. ... People that were convicted under a constitutional sentencing scheme ... are not entitled to the retroactive change in the law that our Legislature made.

Does it bother you at all that the U.S. is one of three countries in the world that can sentence juveniles to life without parole?

Well, I don't know that to be the truth, but I can tell you, I have dealt with these families; I have been at these murder scenes; I have seen victims that have numerous wounds from different types of weapons, all inflicted by one juvenile, maybe two juveniles. I've seen those things; I've personally been involved in handling a lot of these cases, and again, we are talking about, for the most part, juvenile offenders that are some of the worst murderers in the history of the state of Colorado. And I don't think their age has anything to do with it. These are horrendous crimes. They're committed by people that may be young, may be not thinking, may be not realizing the consequences of what they're doing, but when you see the consequences of what they do and you deal with it, then you understand why these families are very upset about changing this law.

If life without parole was appropriate, why was there a swing back to make it 40 years [before eligibility for parole]?

You'd have to ask the people that were proponents of this change. It may be that they feel that our prisons are overcrowded; it may be an economical decision that's being made by the Legislature. They may feel, OK, we have too many people in Colorado that are doing life without parole, so where can we cut? ... I wasn't a party to any of those decisions or why this was going on, but what I was a party to [was] the Legislature trying to pass what I believed was an unconstitutional and illegal law, and that's why I was so opposed to it.