A Fight to the Death

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

In 1988 Colorado legislators attempted to strengthen the state's death-penalty laws, making changes that resulted instead in the law being declared unconstitutional. (Lawmakers had changed the language indicating that jurors could impose a death sentence if the aggravating factors outweighed the mitigating factors to language that said jurors had to impose the penalty under those circumstances.) Lawmakers went back to the drawing board in 1991, and the state is now making another effort to rewrite the law, establishing strict deadlines for the filing of appeals.

The biggest change, though, came during the 1995 legislative session, when the legislature decided that, for all crimes committed after July 1 of that year, a three-judge panel, rather than a jury, would decide a defendant's fate in capital cases. The measure, backed by district attorneys from around the state, including Denver DA Bill Ritter, was intended to prevent a single reluctant juror from sparing the life of a convicted killer. The first defendant to be tried under the new statute is Jon Morris, who's slated to go to trial in May for the kidnapping, rape and murder of five-year-old Ashley Gray.

Because Lorraine Martelli's murder occurred when the old laws were in effect, Frank Rodriguez's fate will still be determined by a jury even if a federal judge grants him a new trial. He also won't be affected should lawmakers enact new legislation regarding appeals deadlines. The one alteration that might have some significance for him came in 1988, when the legislature changed the method of execution in Colorado from the gas chamber to lethal injection.

And with regard to the federal appeal, the actions of state prison officials may have more of an impact on Rodriguez's case than the actions of lawmakers. Heher has argued for years that Department of Corrections officials have read his client's legal mail, that they have sometimes refused to allow him to meet with his client, and that on the occasions that he did see Frank, prison guards videotaped the meetings. According to Heher, those actions made it impossible for him to communicate confidentially with his client, rendering his assistance ineffective.

In 1992 Heher filed a lawsuit attacking the state's surveillance tactics. The case was later turned over to ACLU attorney David Miller. On January 17 of this year, Colorado Attorney General Gale Norton admitted that prison officials had in fact taped the meetings between Rodriguez and his attorney as a security measure. She offered to have a judgment entered against the state, which means the ACLU will likely reap about $100,000 in legal fees from the state.

Whether the judgment will affect Rodriguez's criminal appeals is uncertain. Norton says it won't. Lane says that the state's spy tactics may lead to his client's death sentence being overturned. A hearing at which a federal judge will address that and other issues in the Rodriguez case is scheduled for early May.

If Lane is unsuccessful in saving Rodriguez, he is determined that the struggle will not have been in vain. At the very least, he says, he intends to leave a historical record, one that will show future generations exactly what kind of people were being executed in the 1990s. "They will see," he says of future legal scholars, "that death row is the final home for the most horrifically abused children in our society."

Whatever else it may be, Colorado's death row is certainly an exclusive community. No one has been executed in the state since 1967, and only four other men now live there with Rodriguez. His housemates in a special pod at the Colorado State Penitentiary in Canon City include Ronald Lee White, who's been convicted of three murders, one of which involved hacking apart his Pueblo roommate; Robert Harlan, convicted of murdering cocktail waitress Rhonda Maloney and shooting Maloney's would-be rescuer, Good Samaritan Jaquie Creazzo; Gary Lee Davis, who kidnapped, raped and killed a Byers housewife after she refused to become his "sex slave"; and Nathan Dunlap, convicted of slaying four people at a Chuck E Cheese restaurant in Aurora. Of the group, Davis--who joined Rodriguez on death row in 1987--is believed to be closest to exhausting his appeals.

Both Lane and Heher argue that life on death row is punishment enough for anyone. Rodriguez lives in an eight-by-eight-foot cell, Lane says, and gets out for only 45 minutes a day, when he's allowed into the special death-row exercise area, which consists of little more than a chin-up bar.

"When he leaves that cell," Lane says, "two guards are with him at all times. His meals are given to him by sliding them through a slot in the door." But Rodriguez isn't completely cut off from the outside world. While in his cell, he whiles away the hours watching a black-and-white television and listening to a radio.

The many detours in the Rodriguez case have been hard on what remains of Lorraine Martelli's family. Her mother, who was senile when Lorraine died and never knew that her daughter had been murdered, is long dead. Lorraine's sister Virginia Ross died of cancer in 1993.

"Virginia used to mention it a lot that we had to see this thing through," Antoinette Massimino says. "The evidence in this case--he was just caught red-handed. I don't think there's any doubt that he and the others all participated."

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