Jeff Johnson. Lisl Auman. Curtis A. Brooks.

All three were convicted of first-degree murder in Colorado, which carries an automatic life sentence without the possibility of parole. None of them killed anyone.

But Colorado’s felony murder law, similar to statutes across the nation, allows for defendants to be charged and found guilty of first-degree murder if someone dies during the commission of certain felonies. That’s even if the defendant didn’t fire the bullet or strike the blows that caused the victim’s death, let alone intend to be participating in the crime.

“I had never even heard of felony murder until I got sentenced under that,” Johnson said. “It still took a while until I understood what it meant and what it really was.”

Johnson was 17 and living in a group home in 1994, when a young man he barely knew but was spending the day with fatally stabbed a 55-year-old insurance broker in an Aurora parking garage. Johnson, who never meant to commit a crime that day, was convicted of felony murder and sentenced to life in prison. He was released in November 2018 after more than two decades in prison after being resentenced following a U.S. Supreme Court decision.

State Sen. Pete Lee, a Democrat from Colorado Springs, plans to bring a bill in the upcoming legislative session, which begins Wednesday, to change felony murder from a first-degree murder, Class 1 felony offense to a second-degree murder, Class 2 felony offense.

State Sen. Pete Lee, a Colorado Springs Democrat. He is chair of the Senate Judiciary Committee. (Handout)

That would take an automatic sentence of life in prison without the possibility of parole off the table for people convicted of felony murder. Second-degree murder in Colorado carries a prison sentence of between eight and 48 years, with five years of parole upon release.

“I think people ought to be convicted of what they did,” Lee said. He feels a sentence of life in prison without the possibility of parole is “really a death sentence,” and that such a penalty should be reserved only for people who actually kill someone.

Most prosecutors in Colorado disagree.

They contend that felony murder is an important tool and are fierce defenders of the statute, pointing to heinous cases where defendants wouldn’t have been sent to prison for life without it. Law enforcement also argues the law works as a deterrent for people thinking about participating in extremely risky crimes.

“We want to say ‘in for a penny, in for a pound,’” said 18th Judicial District Attorney George Brauchler. “We use this thing. We use felony murder a lot. It is a powerful tool to have.”

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How felony murder is used

In Colorado, there are six felony crimes that can lead to a felony murder charge: burglary, robbery, arson, kidnapping, sexual assault and escape from law enforcement custody, such as prison or jail.

It doesn’t matter if the defendant intended for someone to die or get hurt. In fact, they don’t have to be present for the killing or even know that it happened to be charged with felony murder.

Take Lisl Auman’s case as an example: She was handcuffed and sitting in the back of a locked police car after fleeing a burglary when the man she was with fatally shot Denver police Officer Bruce VanderJagt. Auman was convicted of felony murder and sentenced to life in prison in 1998, but was released in April 2006 after the felony murder conviction was tossed by the Colorado Supreme Court.

There are headline-grabbing stories of the statute being used in controversial ways in other U.S states that opponents of felony murder use as an example of why it’s an unfair punishment wielded by prosecutors in unreasonable ways.

Ryan Holle was sent to prison for life in Florida after he loaned his car to a friend who used the vehicle to drive three men to a home where they beat to death an 18-year-old woman during a robbery. In Chicago, Tevin Louis was convicted of felony murder, blamed for the shooting death of his friend by a police officer after Louis and his friend committed a series of robberies.

Tally Zuckerman, who was one of Johnson’s attorneys, said she has worked on multiple felony murder cases and in each situation the defendant is blindsided by the charge and the life sentence that comes with it.

“I don’t think I’ve ever had a felony murder case in however many years I’ve been doing this where a client is like, ‘Oh, yes, I am aware of felony murder,’” she said. “It’s often a heartbreaking conversation to have with a client. In a lot of these cases, you end up having confessions from clients who don’t realize they are confessing to felony murder.”

Zuckerman said people who are charged with felony murder are often juveniles or young adults who don’t understand the consequences of their actions and get tied up with the wrong people. “Teens are more likely to run in groups, to commit crimes in groups or in pairs,” she said. “A lot of kids and young adults, this is before they age out of gangs.”

But Brauchler and other prosecutors say it’s unfair to point to out-of-state cases where felony murder has potentially been misused as a reason for why Colorado needs to change its law.

“We live in Colorado,” said Tom Raynes, executive director of the Colorado District Attorneys’ Council. “Show me where our law has failed in a given case.”

Brauchler also says there other ways people can be charged with murder even if they aren’t directly responsible for a killing, which he feels negates the argument that it’s unfair to have a law on the books in which you can be convicted of murder without actually killing someone. “At the end of the day, what the public doesn’t understand about felony murder is it isn’t dissimilar from complicity theory,” he said.

Complicity theory is where prosecutors charge someone with murder for a killing because they played a part in planning or carrying out the crime. Take, for instance, the STEM School Highlands Ranch shooting in May. Of the two students charged in the attack that killed 18-year-old Kendrick Castillo, only one fired the fatal shots. However, both are charged with first-degree murder with extreme indifference because of the complicity theory.

A combined SWAT team waits outside the middle school entrance at STEM School Highlands Ranch after a shooting that killed one and wounded eight students. One of the two accused shooters is being charged with first-degree murder under the complicity theory. (John Leyba, Special to The Colorado Sun)

Raynes and Brauchler feel that Colorado’s felony murder law applies only to a very specific set of felony crimes where there is a high risk of someone dying. Criminals should know if they are going to commit a robbery, sexual assault or kidnapping, for instance, that someone could die in the process.

Prosecutors also say it’s a critical tool that allows them to ensure the worst offenders are locked up for as long as possible.

Jeff Beagley. (Provided by the Grand Junction Police Department)

Take the recent case of Jeff Beagley, who was arrested on suspicion of killing a 9-year-old girl by poisoning her with chloroform during an attempted sexual assault. Beagley died by suicide in the Mesa County jail late last month, but District Attorney Dan Rubinstein said he had planned to charge Beagley with felony murder

Because the killing appeared to be accidental, the case would have been eligible only for reckless manslaughter charges, Rubinstein said. But sexual assault was part of the case, so felony murder applied, prosecutors said.

“I do not want to see it changed,” Rubinstein said of the statute.

Other states rethinking felony murder

Colorado’s forthcoming reexamination of felony murder comes on the heels of efforts in other states to take a second look at their felony murder statutes.

California, for instance, in 2018 changed its felony murder law to require that a criminal intended for someone to die during the commission of their felony crime to be charged with felony murder. The alteration also opened up old felony murder convictions for review, meaning people sent to prison for life are being released as their cases are reexamined.

Lee’s proposed change to Colorado’s felony murder law would not be retroactive. Many other parts of his bill are still a work in progress, he says.

Guyora Binder, a professor at the University at Buffalo school of law who has written a book and several journal articles on felony murder, says the change being proposed by Lee would put Colorado on par with other states.

“There are other states that have felony murder but grade it as second-degree murder,” he said. “My own state, New York, grades felony murder as second-degree murder, rather than first. It takes the death penalty off the table in death penalty states. In Colorado, it would take life sentences off the table as well.”

Ashley Ratliff, a Denver attorney who has worked on many felony murder cases, said taking life in prison without the possibility of parole away as an automatic sentence for felony murder will give judges the ability to penalize people appropriately for their role in a killing. It will also let judges take into account a defendant’s age, family history or intent. “That provides the court with a range,” she said of Lee’s proposal.

Binder said not all 50 states have felony murder statutes on their books. Hawaii, Kentucky, Michigan and Massachusetts are among that group.

Binder also said the U.S. is an outlier when it comes to the use of felony murder laws globally. Other nations with similar judicial systems, like England, Australia and Canada, have all ceased using such statutes.

“I would say that the prevailing opinion around the world is that murder liability should be based on some sort of culpable mental state with respect to death,” he said. “That’s the prevailing pattern in European jurisdictions, both French and German and in the many, many legal systems around the world that are modeled on those (nations’) systems.”

The Colorado General Assembly has weighed whether to change the state’s felony murder law before. In 2017, an effort to make felony murder a second-degree murder offense was swiftly rejected in a bipartisan Senate committee vote.

The dome of the Colorado Capitol on July 26, 2019. (Jesse Paul, The Colorado Sun)

But even with signs that the tide may be shifting on the issue, it could still be difficult to pass such a controversial piece of legislation in an election year.

Former Gov. John Hickenlooper used his clemency powers to cut short the prison sentences of people convicted of felony murder and sentenced to life in prison. That includes his December 2018 decision to release Curtis Brooks, who was 15 when he committed a robbery with a group of other boys and one of them fatally shot 24-year-old Christopher Ramos.

Gov. Jared Polis late last month, in his first use of his clemency powers, commuted the sentence of a man sentenced to life in prison after being convicted of felony murder.

Abron Arrington was convicted of felony murder in the 1989 Colorado Springs killing of 30-year-old Kelly Knudson. His three co-defendants were sentenced to shorter prison terms and have all since been released from prison.

Felony murder reemerged as a top-of-mind issue in recent years after the U.S. Supreme Court ruled in 2012 that it is unconstitutional to sentence juvenile offenders to life in prison without the possibility of parole. In Colorado, there were 48 people sent away for life for crimes they committed as juveniles.

Of those, 16 were convicted of felony murder, according to Denver District Attorney Beth McCann, whose jurisdiction prosecuted seven of those cases. McCann opposes felony murder but is among a limited number of district attorneys in Colorado who have the same mindset.

“I support the effort to revise the felony murder statute this legislative session,” she said in a statement to The Colorado Sun. “However, I need to see the language of the proposed bill before committing my support for a particular piece of legislation.”

“I lost my life as well”

Jeff Johnson says for a long time he felt like when his co-defendant, Johnathan Jordan, fatally stabbed John Leonardelli during a botched burglary in that Aurora parking garage more than 20 years ago, Jordan actually killed two people.

“I was looking at it as if I lost my life as well,” Johnson said. “He killed the victim in our case as well as me because I was going to die in prison.”

Johnson said he had no intention of being a part of any crime the day of the slaying. Behind bars, he turned to drugs and contemplated suicide before turning things around.

Jordan’s sentence was actually shorter than Johnson’s because Jordan pleaded guilty to second-degree murder and prosecutors dismissed a first-degree murder charge initially leveled against him. Jordan is still locked up, but parole eligible in 2036, according to Colorado Department of Corrections records.

Johnson was supposed to be imprisoned for life without the possibility of parole, but the 2012 Supreme Court decision changed his fate.

Now, Johnson, 43, lives in Colorado Springs with his wife. twin infants and two dogs. He speaks often to at-risk kids and visits prisons to speak with inmates. Leonardelli’s slaying still haunts him, and he wishes he had done more that day to stop Jordan.

(Provided by Jeff Johnson)

As for felony murder, he’d like to see it eliminated altogether, but thinks Lee’s proposal is at least a step in the right direction.“I don’t feel like it’s right that someone can lose their life for something that wasn’t really their intention.”

Ironically enough, his current job working for a company that makes metal building kits is in Aurora. His office’s parking garage? The same one where Leonardelli was murdered. Johnson has become friends with Leonardelli’s grandson.

“We always talk about how crazy that is,” Johnson said. “Well, God works in crazy ways.”

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