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The Tenth Circuit Court of Appeals denied Chuck E. Cheese killer Nathan Dunlap's presumptive and actual prejudice challenges to an armed-robbery conviction last week.
Dunlap, who made headlines after killing four people in a shooting rampage at a Colorado Chuck E. Cheese in 1993, appealed his conviction for a Burger King robbery that occurred after the Chuck E. Cheese murders, but before the murder trial; the Burger King robbery was later used as a statutory aggravator in the penalty phase of Dunlap's Chuck E. Cheese trial.
Dunlap argued that the district court erred in rejecting his motion for a change of venue for the Burger King robbery trial because the pretrial publicity about the Chuck E. Cheese case prejudiced his ability to obtain a fair trial.
The Tenth Circuit Court of Appeals disagreed, finding that Dunlap had failed to prove either presumptive or actual prejudice in his case.
In his presumptive prejudice argument, Dunlap claimed that the court should apply the Skilling factors to his case. The Tenth Circuit, however, ruled that the district court had properly applied the relevant Supreme Court precedent at the time of its decision.
On his actual prejudice argument, the Tenth Circuit noted that the district court had taken "extreme precaution" to avoid juror prejudice. The judge conducted in camera voir dire and dismissed potential jurors for significant exposure to pretrial publicity, admissions that they could not be impartial, or expressed opinions as to guilt.
Though some of the empaneled jurors had heard of Mr. Dunlap and the Chuck E. Cheese murders, none expressed an opinion about Mr. Dunlap's guilt in either the Burger King or Chuck E. Cheese cases, and all assured the judge of their ability to be impartial.
Nathan Dunlap, the longest-serving inmate on Colorado's death row, can seek an en banc appeal before the Tenth Circuit Court of Appeals.
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