Judges across Colorado are now having to set bail in first-degree murder cases, including two in La Plata County, after a state Supreme Court ruling in June that eliminated an option to hold the defendants without bail.

Damitre Burch, a teenager accused of killing a 21-year-old Speedway clerk in Bayfield in August 2021, was set at $5 million. Luis Raul Valenzuela, who is accused of stabbing and killing a pregnant 28-year old woman south of Durango, appeared in court in June and had his bail set at $2 million. They were previously being held without bail.

In a bail hearing earlier this month, Burch’s public defender, John Moran, sparred with Deputy District Attorney Mac Dudley over what constituted a fair bail for Burch.

The discourse brought into focus the debate occurring in courtrooms across the state, including in the 6th Judicial District.

Judges, prosecutors and defense attorneys must weigh the need to compel defendants – even first-degree murder suspects – to return to court against their Eighth Amendment constitutional rights that protect against excessive bail. And the cases that spur this debate are those in which defendants had previously been held without bail, on the basis that it was highly likely they would be found guilty of murder.

“It was unprovoked murder of a stranger, with a common weapon – a knife,” Dudley said in arguing for a $5 million bail during Burch’s hearing. “How does court set a bond to protect the safety of our community from that?”

The 19-year-old has limited resources, Moran said in defense of his client, who has no ties beyond his family in La Plata County. Moran argued that Burch has “a third or fourth grade appreciation of the world” and perceived Farmington as a distant and “exotic” location.

District Judge Jeffrey Wilson set Burch’s bail at $5 million cash or surety.

In Colorado, all criminal defendants were afforded the opportunity to make bail, save for those charged with capital offenses in certain circumstances. First-degree murder was one of the few crimes for which someone could receive the death penalty before the state Legislature abolished capital punishment in 2020.

On June 20, the Colorado Supreme Court handed down a decision in People v. Smith, finding that because capital punishment no longer exists, capital offenses no longer exist either. The decision took away the option to hold defendants facing first-degree murder charges without bail, and made all defendants eligible for release pending trial.

Of the six pending murder cases in the 6th Judicial District, four defendants are charged with first-degree murder. Of those four, only two – Burch and Valenzuela – had been held without bail.

In the wake of last month’s ruling, some state judges have set extraordinarily high bails – one as high as $100 million in cash – for first-degree murder defendants that had previously been held without bail.

The Eighth Amendment to the United States Constitution says “excessive bail shall not be required,” and some lawyers, including Burch’s attorney Moran, have argued that out-of-reach bails are unconstitutional.

The intention of bail is to ensure a defendant’s return to court as well as protect the safety of the public. Judges may take into account a host of individual factors, such as a defendant’s financial status, access to resources, community support, potential sentence and past criminal history when considering what constitutes a fair bail.

“When we’re talking about setting bails this high, the idea is to make sure that they (defendants) would come back to court if they left and have enough of a stake in the game that they wouldn’t really, truly be able to leave because it’d be leaving so much money on the table,” said District Attorney Christian Champagne.

But in Burch’s case, defense attorney Moran argued that $5 million is “effectively a no-bond hold” given Burch’s limited financial means.

“Intentionally setting bail so high as to be unattainable is simply a less honest method,” he argued.

The question remaining is whether the people of Colorado desire an option for first-degree murder suspects to be held without bail. Given the potential sentence they could face, defendants charged with capital crimes could be held without bail because they had an enormous incentive to flea; Burch could face up to 40 years in prison.

Some lawmakers have called for a special legislative session to change state law allowing for no-bond holds in murder cases. But Gov. Jared Polis has said this won’t happen because it would take a constitutional amendment voted upon by the people to allow no-bond hold in noncapital cases – something that could not happen until the 2024 general election.

Pending a change in state law or an amendment to the state Constitution, prosecutors hoping to keep defendants locked up are stuck arguing for high bails that would effectively constitute a no-bond hold, while defense attorneys argue the practice is not legal.

Champagne, who has yet to delve in-depth into the matter, said he favors a more transparent method of holding dangerous defendants in jail.

“It’s sort of a farce,” he said. “... I would rather see somebody just be told that, ‘You cannot be released on bond’ than setting a bond that’s $25 million. Because it’s just a silly game that we’re playing.”

In setting Burch’s $5 million bail, Wilson said that given the overwhelming evidence against Burch – the murder was captured on security cameras – there is a significant danger to the community.

Wilson also noted that while Burch appears to have little financial means, it is possible that the Southern Ute Indian Tribe, of which Burch is a member, has significant financial resources and could opt to help him.

Burch would need to procure $750,000 – 15% of the $5 million bail – to secure a surety that would release him from jail.

“While he might not have anywhere to go, the court sees no reason why he’d abide by rules,” Wilson said.

rschafir@durangoherald.com