A Fight to the Death

Frank Rodriguez was sentenced to die twelve years ago. Are we there yet?

However, the official transcript of the proceeding shows that Peterson never made the remark, and the judge took offense at Heher's contentions. She filed a formal grievance against him with the state Supreme Court, accusing him of lying. No action was ever taken on the grievance, but to this day Peterson refers to Heher's allegations as "a lie."

"I am not going to say that in a death-penalty case," she says. "That's stupid. I've never said anything like that to any counsel."

Silverman, too, remains angry at what he refers to as the defense counsel's "unconscionable" accusations against Peterson. "They adopted a strategy of accusing Judge Peterson of this," he says, "and to some extent, it worked. She grieved that and then recused herself from the case. Then they shuffled it from courtroom to courtroom and judge to judge, delaying the case several years."

The defense team's ability to stall has won the grudging respect of Silverman, who left the district attorney's office to launch an ultimately unsuccessful run for DA and is now in private practice. "They do everything in their power to keep Frank Rodriguez from being executed," he says. "And I admire their tenacity, even if I don't admire their tactics."

Rodriguez finally exhausted his appeals in the state courts last year. In November defense attorneys took his case to U.S. District Court to begin a final round of appeals. Silverman says he thinks it could be another five years before Rodriguez is executed.

Lane, a veteran defense attorney, was assigned to the federal case and has continued the personal attacks on the prosecution. "Chief Deputy District Attorneys Little and Silverman cared only for one end--a death sentence for Mr. Rodriguez," Lane wrote in a petition filed January 24. "The Rules of Criminal Procedure, the Code of Professional Responsibility, and our Constitution were but nagging obstacles [to them]."

In addition to trotting out those arguments, Lane has another strategy he hopes will save Rodriguez's life: raising the claim that Rodriguez was an abused child and therefore is not entirely responsible for his actions.

The notion that people's childhoods can serve as mitigating factors for their criminal behavior as adults is a common and frequently successful tactic in felony cases. After Kevin Fears was convicted of shooting three men execution-style in Denver's Bonnie Brae witness killings of 1989, public defenders regaled jurors with stories of the childhood abuse allegedly suffered by the double murderer (one of whose intended victims survived by playing dead). By the time the defense was finished, jurors were weeping in the jury box. Fears avoided the death penalty.

Lane's strategy is based on a nearly identical claim. Early in the case, he now says, the public defender's office erred by not probing deeply enough into Rodriguez's background. That blunder, he adds, means Rodriguez received ineffective counsel, which in turn means the death penalty should be vacated. Lane is righteously indignant that Rodriguez's early attorneys didn't make it absolutely clear to their client why they wanted to know about his childhood.

"Robin Desmond asked Frank just one time if he'd ever been abused as a child," Lane says. Frank responded in the negative, and Desmond dropped the subject. A single inquiry by a defense investigator ended with the same response. "There was no meaningful attempt to explain to Frank why they were asking this," Lane says.

The state district court and the Colorado Supreme Court threw out similar arguments made by private attorney Richard Hostetler in 1993. (Hostetler had been appointed by the court to present evidence supporting Rodriguez's claim of ineffective assistance of counsel. The public defender's office handled all other claims.) Lane, however, says the state's court erred when it ruled that it was Rodriguez's fault that his background was never presented to a jury.

In his January 24 petition to the federal court, Lane laid bare the details of Rodriguez's allegedly hellish formative years, adding that it is nearly impossible to do so "in a way which would convey to this Court how the torment and torture he lived through as a child have shaped his very being."

Though Rodriguez initially told Desmond and her investigator he'd never been abused as a child, he now seems to have discovered a new set of memories. Lane wrote in his petition that when he speaks to Rodriguez today about his childhood, his client "begins to tremble. Discussing his family life brings on severe headaches in Frank. When he recalls his father, he literally shakes and pales."

Rodriguez's father, Frank Rodriguez Sr., was a career burglar who was in and out of prison as his four children were growing up. According to Lane, he was also a drug addict and a drunk who was behind bars for the births of all his children except Chris, the youngest.

Frank Sr. was a violent man, Lane wrote in his petition to the court, and "during his rages, any and all family members had their very lives hanging by a thread."

"Frank Sr. would often start by grabbing his weapon of choice--a very large, very sharp, very dangerous machete," Lane wrote. "He would grab Frank Jr., Chris, or their mother and hold the machete to their throats, calling them vile names while threatening them with death." Then he'd allegedly put down the machete and pummel his wife with his fists.

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