Death Takes a Holiday

A technicality stalls the state's first decision under a new death-penalty law.

Those waiting to see Colorado's new death-penalty tag team in action will have to wait even longer than expected.

The first test of a two-year-old law that takes the death-penalty decision out of the hands of a jury and places it before a three-judge panel has been put on hold by the Colorado Supreme Court.

Francisco "Pancho" Martinez was convicted in Jefferson County on September 3, a day shy of his 25th birthday, for his role in the May 1997 rape, torture and murder of fourteen-year-old Brandaline Rose Duvall by members of the Crenshaw Mafia Gangsters Bloods gang. The jury took only about two hours to find him guilty on nine charges, including three separate counts of first-degree murder, first-degree sexual assault, sexual assault on a child and kidnapping.

Martinez's was to be the first death-penalty case heard by a three-judge panel that consists of the trial judge (in this instance, Judge Michael Villano) and two judges from other districts selected at random by a computer (in this case, Arapahoe County District Judge James Macrum Jr. and Denver District Judge Robert Hyatt).

In the past, jurors who found a defendant guilty of first-degree murder in a death-penalty case continued to serve through a penalty phase, which was essentially another trial. During the penalty phase, both sides presented witnesses and evidence. The defense, for example, would commonly point to abuse in a defendant's childhood or drug problems, which might have contributed to the crime. The prosecution might have brought up a defendant's criminal history. The jury then decided the defendant's fate.

Two years ago state lawmakers voted to take the onus off jurors and create the three-judge panels, the idea being that judges would be less likely to be swayed by emotion.

Prosecutors liked the idea and defense attorneys did not, essentially for the same reason: As with the trial portion of such a case, a death-penalty verdict has to be unanimous. For defense attorneys, it's much easier to get one juror out of twelve to vote against the death penalty than one in three.

The three judges were to begin the penalty phase of Martinez's trial on November 17, at which time lawyers for both sides were to present witnesses and evidence for or against Martinez's death by lethal injection. Martinez's other option is life without parole.

However, Martinez's defense team, led by attorney David Kaplan, asked the state supreme court to hear what is known as a Rule 21 motion, which deals with how evidence is handled.

In the past, only the prosecution had to give all of its evidence to the defense; however, under the new law, defense attorneys also are supposed to hand over everything they learn about their client's character from any witnesses they plan to call for the death-penalty phase.

Martinez's lawyers complained to the court that some of that material is "work product," which the defense is normally allowed to withhold from the prosecution. Also, they argued, giving the prosecution a list of potential witnesses may give away the defense strategy.

The court, which according to legal sources generally accepts the Rule 21 motion about one time in a hundred, took this one on last week. Sources say the court's decision was probably based as much on the fact that this is the first death-penalty case to be heard under the new system as it was on the motion's merits.

The court stayed any further hearings, as well as the death-penalty trial itself, until it makes a ruling. With both sides having nearly a month each to present briefs to the court and the justices then needing time to ponder their decision, it could be four months before the court rules--so it may be next spring when the panel of judges delves into one of the most horrific crimes in recent memory.

Duvall was standing alone at a bus stop on Federal Boulevard about 11:30 p.m. on May 30 when she accepted a ride to a "party" in a car occupied by five young men, including several members of the Crenshaw Mafia Gangsters Bloods gang. She was taken to the house of Jose Martinez, the uncle of gang member Daniel "Bang" Martinez. (Neither man is related to Francisco Martinez.)

Already at the house were Daniel Martinez, Samuel "Zig Zag" Quintana Jr., Frank "Little Bang" Vigil and Francisco Martinez. Jose Martinez, also known as "Uncle Joe," was asleep in a bedroom with his ten-year-old son and ten-year-old granddaughter when Duvall and the others arrived.

According to trial testimony of Jose Martinez, who claimed he could do nothing to stop the assault on Duvall because he was afraid, Francisco Martinez was the most savage of those present that night. He carried the five-foot-four-inch teenager into a bedroom and flung her down on a mattress, where members of the gang raped her over several hours.

Francisco Martinez was accused of using a broomstick to rape the girl anally and of kicking her when she defecated. The prosecution also intimated that cuts to Duvall's anal area were made by Francisco Martinez. Later, when Duvall, hooded and handcuffed, pleaded on her knees for her life, Francisco Martinez kicked her in the head and said, "Shut up, bitch," according to Jose Martinez's testimony.

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