Greene: Here’s how race played out in one of Colorado’s three capital convictions

Editor’s note: This column originally was published on April 28, 2018 with the headline: Greene: Former jury foreman in capital case made to reckon with his ‘racial stereotypes and prejudice’. With abolition of Colorado’s death penalty again being debated by the state legislature, we are reposting it. 

Carl Dubler would prefer that I not write this.

The software marketer from Centennial served as foreman of the 2009 jury that convicted and handed a death sentence to Robert Ray, one of the three men now on Colorado’s death row.

Dubler could have avoided scrutiny had he not written a book about Ray’s 10-week trial. And even then, his unpublished memoir wouldn’t have made headlines had it not been peppered with racial stereotypes.

But in a state that’s 5 percent black, with a death row occupied entirely by African Americans, it is newsworthy, whether Dubler likes it or not, that the last jury to mete out a death sentence was led by a man who wrote that what he knows about African Americans is “bad news.”

“Look, ma’am, I’m a private citizen,” he told me in an Arapahoe County Courthouse elevator earlier this month. “Can you just, like, leave me alone?”

* * *

How, nine years after forcefully rallying for Ray’s death sentence, Dubler has ended up defending his jury service requires some explanation.

Ray and his co-defendant, Sir Mario Owens, both were tried and convicted for the 2005 murders of Vivian Wolfe and her fiancé Javad Marshall Fields. The couple was gunned down days before Fields was scheduled to testify against Ray, who was charged as an accomplice in a different murder case. Ray was sentenced to death for Fields’ murder, and Owens for both.

Fields – who went by “Jay” – was the son of Rhonda Fields, an Aurora Democrat elected to the state House and then Senate after grief inspired her activism.

Like both the victims, Ray and Owens are black. So is Nathan Dunlap, the convicted Chuck E. Cheese killer and the third man on Colorado’s death row.

All three were prosecuted in Colorado’s 18th Judicial District, which includes Arapahoe County and rural areas to the south and east, and long has been the epicenter of capital prosecutions in the state. George Brauchler, the district attorney there, built his political career on his record prosecuting capital cases. Brauchler snagged the Republican Party’s nomination earlier this month to replace Cynthia Coffman as state attorney general, the state’s top law enforcer.

In 2013, Gov. John Hickenlooper – who’d won office as a capital punishment supporter – cited concerns about racial inequities and other “flaws” in Colorado’s death penalty system when deciding to grant Dunlap a temporary reprieve as his execution date drew near. Facing criticism that he was punting on one of the state’s most controversial issues, Hickenlooper called for a “statewide conversation” about the capital punishment that, five years later, still hasn’t taken place.

In the meantime, concerns about how the death penalty is pursued in Colorado have grown with a University of Denver Law School study showing that defendants of color are five times more likely to face capital prosecution than those who are white. Of the 22 capital cases tried from 1999 to 2010, the research found, only two were against white defendants.

It was in that context that Dubler was plucked from his job marketing software products to serve on Ray’s jury in 2009. The brutality of the double murder and the cast of mainly African Americans involved unsettled the white suburbanite who acknowledged having a “black and white view of the world.”

“Most everything I know about black people is bad news: crime, gangs, drugs, teen pregnancies and absentee fathers, more young men in jail than in college,” he wrote in his book, which he shared with a prosecution detective and which then made its way to Ray’s post-conviction lawyers after much legal wrangling.

In a court filing, Ray’s lawyers say the book proves that Dubler was neither fair nor impartial – and that it’s among several reasons why District Judge Michelle Amico should vacate Ray’s conviction and death sentence.

* * *

The book is as much about Dubler, 47, as it is about the murder case.

Raised in rural Laporte – four miles from Fort Collins – he wrote that the first African American he encountered was a student on his Air Force ROTC squadron at Colorado State University. He recalled the way that young man’s “white teeth stood out against his dark skin” when he smiled.

Black people remained a novelty for him even into adulthood.

“So, my entire adult life, I have known only two African-Americans,” he wrote. One was a co-worker who “contradicted all the stereotypes of black people I had learned” because, “[while]  the size of a football lineman, he did not go to college to play sports.”

Dubler wasn’t just unfamiliar with African Americans. He was scared of them.

“I do not feel any racism in my heart,” he wrote. “Yet I have to admit that when I would encounter a black man on the street, my pace would quicken, and I would go on a heightened sense of alert.”

At several points in his book, he noted how impressed he was with witnesses’ remembrances of Fields, who had studied communications at Colorado State University just as Dubler had nearly two decades earlier. He wrote that Fields’ academic accomplishments and decency surprised him for a young black man and made his murder seem especially tragic. On the other hand, he wrote that Ray’s involvement with street violence, drugs, and crime – traits he expected of an African American man – made the defendant unworthy of living.

* * *

Courts require impartiality among people picked to serve on juries. They take special caution in capital cases because of a death sentence’s finality.

“A racially biased juror sits with blurred vision and impaired sensibilities and is incapable of fairly making the myriad decisions that each juror is called upon to make in the course of a trial. To put it simply, he cannot judge because he has prejudged,” reads a 1986 Supreme Court decision in a Virginia case, Turner v. Murray, which Ray’s post-conviction lawyers cited in a petition seeking to overturn his conviction and death sentence.

Like other potential jurors, Dubler had been asked on a questionnaire and verbally whether, if he were to be picked, race would play a role in his decision-making. He answered no.

Ray’s main trial lawyer had sought to delve deeper on that questionnaire into the details of prospective jurors’ attitudes and experiences regarding race. But the judge blocked him from doing so, calling those questions irrelevant because the two victims were black. The trial lawyer could have asked those questions verbally during the voir dire phase of jury selection, but chose not to, figuring that potential jurors would be unlikely to raise their hands and admit publicly that they’re racist.

That trial lawyer’s failure to elicit Dubler’s views on race – as well as Dubler’s own failure to disclose them – afforded a man Ray’s post-conviction lawyers describe in their court filing as a “biased, challengeable and entirely unfavorable juror” the chance to strongly rally his peers toward unanimous guilty and death verdicts, the lawyers argue in their petition. They say the racial views expressed in Dubler’s book are proof that he “viewed evidence through a thick filter of racial stereotypes and prejudice, all to Mr. Ray’s disadvantage.”

After more than a year of post-conviction hearings, Ray’s legal team called Dubler to testify April 10th. Tall, dressed in neatly pressed corporate casual, he seemed to wince whenever Ray’s lawyer Mary Claire Mulligan read an excerpt detailing his views on African Americans. Later, during a break in his testimony, he dodged my questions about lawyers’ characterization of him as a racist.

“I don’t have to talk to you,” he said in the courthouse hallway. “For all I know, you’re just out to get me.”

* * *

To his credit, Dubler agreed two weeks later to a lengthy interview about his jury service, his book, and the experience of having to defend both on the witness stand.

“I’m not a judge. I’m not a legal professional. I didn’t ask to be involved in this case,” he told me. “I wasn’t ready to have the personal details of my life brought into the court to be questioned in front of the defendant as though I was the one who did something wrong.”

He says he can see why “showing that I’m a racist” would be of interest to the team of lawyers trying to spare Ray from lethal injection. And, convincingly, he says he doesn’t begrudge their efforts to do so.

But he insists he is misunderstood.

As Dubler tells it, his view of African Americans stems not from intolerance, but from stereotypes he grew up with as the son of evangelical Christians who were judgemental, even intolerant, of people different from themselves. Those stereotypes, he says, followed him to Centennial, a Denver suburb where he has lived since 1993.

He says his experiences with and perceptions of black people aren’t much more limited than those of his neighbors and coworkers in the tech industry, most of whom are white.

“I don’t see why it’s such a shock that I’m not encountering African Americans in my daily life. You could ask people in my neighborhood and they’re probably no different,” he said. “In my case, it’s not overtly racist. It’s expressing something that millions of Coloradans have gone through.”

“In today’s society here in America, racism is the unforgivable sin,” he added. “There isn’t any room for nuance.”

Dubler has been working on his book on and off for about seven years. He is quick to note that he has revised it several times, removing sections perceived as racially insensitive. He’s also quick to note that since his jury service, he has come to know at least one African American – Sen. Fields who, in memory of her son and his fiancée, set up foundation that raises scholarship funding for students of color. He has donated more than $12,000.

“If you look at what I’ve done with my money, that shows I’m not a racist,” he told me.

What bothers Dubler most about scrutiny of his racial views is that he says it overlooks the care with which he and the jurors who picked him as their foreman took in their guilt and sentencing decisions.

“We agonized over Robert Ray. We actually shed tears over him. There’s no way that anyone in that jury room over three days could come out of there thinking anyone was a racist. It would be impossible,” he said.

“Colorado can be confident about these juries it picks for these cases.”

* * *

Dubler’s racial musings aren’t the only parts of his book that Ray’s lawyers find objectionable. They question whether he made his jury decisions impartially, or under what he perceived to be a religious calling.

His memoir recounts how he received “words of knowledge” – or a spiritual vision – when opening his juror summons in 2009. As he described it, it seemed by divine providence that he was going to be picked for a jury, serve as its foreman, and achieve a unanimous jury decision despite fierce reluctance from at least one juror.

“I … felt that God had given me some advance notice, as a way of preparing me for what was to come,” he wrote of a vision he described as “quite real.”

Ray’s lawyers have taken Dubler’s account of his vision to mean that his God – to whom he professed his obedience – frowned on non-unanimous jury votes, which in Ray’s case would have resulted in a not-guilty verdict or life in prison rather than a death sentence.

They noted in their petition to Judge Amico that Dubler acted with “intense anger” when a fellow juror hindered his wishes to impose the death penalty for Wolfe’s murder, and again when a juror was leaning toward opposing a death sentence for Fields’ killing because death wasn’t their sentence for Wolfe’s.

“Those highly emotional reactions to entirely legal, acceptable outcomes and individual juror moral decisions are consistent with Mr. Dubler’s belief that God had directed him to obtain unanimous death verdicts,” the court petition reads.

Dubler wrote that his visions came true during jury deliberations. After he had persuaded fellow jurors to reach a unanimous vote sentencing Ray to death for Fields’ murder, he was  “… sure that God was really trying to reach me.”

But his certainty waned on the witness stand this month when he backtracked about divine intervention. When Mulligan questioned how his faith affected his jury service, he said it played no role. When further questioned about the vision from God described in his memoir, he dismissed it as the result of having watched too many courtroom dramas on TV.

Mulligan asked Dubler about the truth and accuracy of his book.

“I think something can be true and not necessarily be accurate,” he told her. “Sometimes I write things to help me justify what I did.”

* * *

It was clear to me that day in court that Dubler – a white man who is afraid of African Americans and admits to having carried both racial and spiritual biases into trial – had no business serving on a jury considering a possible death sentence for a black man.

But that isn’t the purpose of this column.

I write because Dubler’s testimony has nagged at me in the weeks since that hearing. I’ve wondered why he wrote and disseminated a book rather than keeping a private journal, and why its assertions were, by his own admission, so shaky. I’ve struggled to understand what he meant by having written the manuscript to help him “justify” his decisions, and to whom he felt he needed to do so.

Dubler’s answers to my questions were surprisingly introspective for a man who, at least on the witness stand, seemed incapable of looking inward.

He says he wrote the book because Ray’s trial didn’t end with the verdicts. The heaviness of the double murders and the weight of his sentencing decisions pressed on him long after he was dismissed from jury duty. And they still do nine years later.

He says he envies jurors in James Holmes’ 2015 capital murder trial for failing to reach a unanimous verdict that would have sentenced the Aurora theater shooter to death.  “In a way, they dodged a bullet because they don’t have to think about their decision for years to come. And if the sentence were finally carried out, they don’t have to think about that, ….or if something  comes out later. I think it’s natural to say, ‘What if we got it wrong? Did we get it wrong?’”

“Now I can see how dangerous the whole job of judgement is.”

Though he asserts that death was an appropriate decision in Ray’s case, he says he wrote his book to try to “make sense of it, to redeem it.” His musings about race and spirituality, he told me, “helped assure” that he “got it right.”

Dubler didn’t say who specifically his book was meant to assure, but it was clear during our conversation that he was trying to assure himself as much as me. He flipped several times between saying he plans to publish it, and saying he wishes he never shared it, and saying that, in hindsight, he should have just kept quiet.

“I’m sad that the things that I wrote are being used or construed to mean I’m racist. I’m not. I don’t know how many ways to tell you I’m not a racist. I don’t know what to tell you. … I know it’s really tough having to prove a negative. And I do wish I had not written what I did. That’s why I revised it because, in retrospect, that’s not how I feel,” he said.

“You have no clue at that point in your life that something you wrote will be used against you a decade later,” he continued. “I wrote something years ago that I did not intend to publish and you’ll use it against me that [I] have racist thoughts.”

But my interest in Dubler’s story is not to burn him for those thoughts. It is, rather, to take a hard look at a man who very publicly has had a mirror held up to him – one that reflects the ugly stereotypes we all carry, the even uglier ignorance from which they’re born, and the contradictions, prevarications and rationalizations we tell ourselves about them.

My interest is that we live in a time when it becomes harder and harder to ignore the fact that we are a deeply racist country, and that our racism renders hollow and unfulfilled the ideals of fairness and impartiality upon which our justice system is based.

My interest is that a juror who pursued a death sentence for a crime Ray committed years earlier thinks it unfair that he should be held accountable for what, far more recently, he wrote about that pursuit.

What interests me are the revisions Dubler has made, and the revisions we all make, and the ongoing acts of reconciliation that need to be made for there to be justice. What interests me, too, is when – and whether – we will collectively learn, as Dubler seems to be learning, just how dangerous it can be, this whole job of judgement.

Photos by Susan Greene, and tryptic by Mark Castillo.