The Final Judgment

Two years ago this week, Brandy DuVall was killed by members of the Deuce-Seven gang. For the past month, the courts have been deciding whether her murderers live or die.

Bakke will be asking the panel--Judges Leland Anderson of Jefferson County, who presided over the trial, Timothy Fasing of Arapahoe County and John Coughlin of Denver--to sentence Danny "Bang" Martinez Jr. to death by lethal injection. Normally assigned to the unit that deals with sex crimes against children, this has been Bakke's first murder case. And so this will be the first time she will ask a judge for another human being's execution.

It is time for the court to "shift its focus from what crimes were what evils have been suffered," she tells the judges. The words on the more than 750 pages of transcripts from Danny's trial that the judges have been given to assist with their decision "fall short of describing the indescribable."

A pall hangs over this courtroom that goes beyond the terrible business at hand. It's only been a week since twelve students and one teacher were murdered by two gunmen at Columbine High School in Jefferson County. The blue-and-silver-ribbon remembrance emblem is everywhere. It adorns lapels and blouses of men and women in the audience, of prosecutors and defense attorneys, of the deputies who stand guard.

Members of Brandy's family also wear a button promoting Victims Rights Week. The buttons read: "Victim's Voice. Silent no more." But the family sits quietly, knowing, dreading what is to come. Angela and her husband, Karl Metzger. The grandchild Brandon, named after his murdered aunt, in his stroller. Angela's friend Amy. Grandmother Peggy DuVall. Grandparents Rose and Paul Vasquez and several more relatives. As Bakke begins her opening remarks, the older members of the family adjust the headsets provided by the court.

Al Simmons, the short, tough Jeffco sheriff's investigator who took the lead in the DuVall homicide, listens at one end of the prosecution table. He'd been working on the Columbine case, but he had to drop that for this--from one horror involving kids to the next. It will be his job to guide the judges through the evidence that was presented to the jurors at trial in January.

Danny Martinez sits quietly, staring down at the space beneath the defense table he shares with his attorneys, Forrest "Boogie" Lewis and David Lindsey. The long, flowing hair he wore at trial is gone, shaved to boot-camp length.

When he first entered the courtroom in handcuffs and shackles, Danny smiled briefly at the rows filled with his supporters and rolled his eyes as if to say, Can you believe this? His father is there, but his mother and sister wait in the hallway, sequestered because they will be called as witnesses.

Bakke doesn't spend a lot of time making an emotional pitch. These are not jurors she needs to win over. And judges aren't supposed to be swayed by such courtroom tactics--that was one of the arguments for the legislation that took responsibility for the death-penalty decision out of the hands of jurors and gave it to a panel of three judges.

Instead, Bakke lays the groundwork for the first in the four-step process that the judges will follow to reach their decision. Step one requires the prosecution to prove any one of seventeen possible statutory "aggravators" that essentially define why a particular murderer should be killed for his crime.

Bakke tells the judge that the prosecution intends to prove five things: that Danny Martinez caused the death of Brandy DuVall "in the course of or in furtherance of or flight therefrom" a felony--in this case, assault, sexual assault and sexual assault on a child using force; that Danny intentionally killed a kidnapped person; that Danny was party to an agreement to kill Brandy; that Danny killed Brandy to avoid lawful arrest or prosecution; and that the murder of Brandy was "especially heinous, cruel or depraved."

To make her point, Bakke tenders photographs--a set for each judge--of how Brandy, "a child by her nature and by legal definition," looked before she met members of the Deuce-Seven. And "how she looked when they were done with her."

As two of the judges see the horror for the first time, she tells them that they will have no choice but to sentence Danny to die.

The statute establishing the three-judge death-penalty panel was passed by the Colorado Legislature in 1995 and went into effect for murders committed after July 1996. The panels consist of the trial judge and two selected at random from surrounding districts.

Prosecutors had pushed for the new law, saying it would bring "consistency" to sentencing. Defense attorneys had decried it, claiming it would be easier than ever to impose the penalty.

Convicted in September 1998, Francisco Martinez was originally scheduled to be the first Colorado man to go before such a death-penalty panel. But when his case was continued until May, that distinction went to Robert L. Riggan, convicted in November, also in Jefferson County, of the murder of a young prostitute. His case went before a panel in mid-April in a Jeffco courtroom that had been modified to allow the three judges to sit in a row on the dais ("Judgment Day," May 6).

At Riggan's trial, the jury had hung on the question of first-degree murder and whether he'd "intentionally" killed Anita Paley. Instead, the jurors had settled for felony murder, determining that Riggan had killed her in furtherance or to cover up another crime--in this case, sexual assault.

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