Judgment Day

The state's first death-penalty panel meets--and spares the life of Robert Riggan.

In the end, it wasn't so easy to kill Robert Lee Riggan Jr. after all.
The 39-year-old drifter from Iowa was convicted last fall of the May 1997 murder of 21-year-old prostitute Anita Paley, the mother of two little girls. Riggan had taken Paley up to the mountains outside of Black Hawk, where he'd assaulted her; passersby later saw him dragging a sleeping bag bearing her bloody body. Paley, still unidentified, died from a blow to the head; a three-inch incision had also been cut into her vagina, severing an artery ("Trials and Tribulations," November 19, 1998).

After a lengthy trial, four days of deliberations and his conviction by a Jefferson County jury, Riggan's ultimate fate rested with a panel of judges. The Jeffco prosecutor had asked for the death penalty and, through an odd twist in timing, Riggan would be the first defendant in the state to have his life-or-death sentence determined by three judges rather than by a jury.

If you believed certain defense attorneys, that meant Robert Riggan was as good as dead.

In 1995, the Colorado Legislature approved a bill that called for taking a death-penalty decision away from the jury that had decided the original case and giving it to a three-judge panel instead. District attorneys, who had lobbied the legislature to pass the law after several setbacks by holdout jurors, argued that it would bring more "consistency" to death-penalty sentencing. But defense attorneys, including some who will soon be arguing for their clients' lives before such panels, complained that judges would simply serve as rubber stamps for bloodthirsty prosecutors.

Judges, of course, have long done the sentencing for all crimes other than those that pose the possibility of the death penalty, including first-degree and felony murder. Only when a defendant's life was at stake was a "jury of his peers" to decide his ultimate fate. But the law that took effect July 1, 1996--shortly after a jury consigned Nathan Dunlap to death for the Chuck E Cheese murders--changed that, moving responsibility to a panel of judges. Initially, prosecutors had wanted a single jurist--the trial judge--to rule on the issue, a system used in several states, including Arizona. But after Governor Roy Romer made it known that he wouldn't sign such a measure, lawmakers compromised with a panel of judges, a setup shared only with Nebraska. Colorado's death-penalty panels would consist of the trial judge and two more judges selected randomly, by computer, from surrounding counties.

By January of this year, six death-penalty cases were pending--four in Jefferson County alone. And after an appeal by attorneys representing Francisco Martinez, convicted last September of the murder of Brandy DuVall, Riggan's hearing, set to begin April 12, suddenly became the first that would go before a three-judge panel.

El Paso County Judge Michael Heydt chose to resign on the first day of Riggan's hearing rather than sit on a death-penalty panel in Colorado Springs in June. In his letter of resignation, he called the new system "unworkable," adding, "I do not believe that a fair and just decision can be made by a panel of judges from a paper record."

Riggan's panel included Jefferson County District Court Judge Frank Plaut, who'd presided over Riggan's October trial--Plaut's first murder trial since his appointment to the bench in 1996. The other members--Brooke Jackson, another Jeffco judge appointed just last year, and Robert Smith, an Arapahoe County District Court judge since 1987 who'd presided over murder trials but never one involving the death penalty--would have to rely on transcripts from that trial as well as testimony from witnesses brought in specifically for the hearing.

When Colorado lawmakers adopted their new death-penalty system, they did not elaborate on how the three-judge panel should determine if a death sentence was in order. So Plaut and his fellow jurists followed the four-step process that juries had previously used in reaching their death-penalty decisions, a process reaffirmed by the Colorado Supreme Court just a month before in a ruling connected to Nathan Dunlap's case.

The three judges began their work without benefit of the defendant's presence. Shortly after he was brought into the courtroom, Riggan had demanded that he be allowed to return to his jail cell. "I don't want no part of this garbage," he told Judge Plaut. "Go ahead--kill me and get it over with...I did not kill that girl, but there's nothin' I can do about it."

The prosecution had lied during his trial, Riggan said, and his attorneys could have proved it, but they didn't try. In fact, Riggan complained, when he'd attempted to say something about that during his trial to lead attorney Dennis Hartley, the lawyer had told him "that if I didn't stop, he was going to rip my fuckin' head off."

Riggan was allowed to leave the courtroom. He would not return until his sentence was read.

Step One: The first step in the four-part death-penalty process calls for the prosecution--in this case, deputy district attorneys Dennis Hall and Dana Easter--to prove at least one of fourteen "aggravating factors" beyond a reasonable doubt.

The Jeffco prosecutors focused on two. One was that the murder and sexual mutilation of Paley was "especially heinous, cruel and depraved." In order to prove this, they produced witnesses who contended that an unconscious person--as Paley would have been after the blow to her head--can feel pain. What Riggan had done by cutting Paley's vagina constituted "gratuitous violence" on a helpless victim, Easter said, and "served no purpose other than the pleasure of the defendant." Untreated, she added, the wound would have killed Paley.

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