By Patricia Calhoun
By William Breathes
By Michael Roberts
By Melanie Asmar
By Michael Roberts
By Michael Roberts
By William Breathes
By Michael Roberts
Hal Sargent takes a last glance at his notes before looking up at the panel of judges. Two years of prosecuting members of the Deuce-Seven Bloods gang for the May 1997 rape and murder of fourteen-year-old Brandy DuVall are nearly at an end. This is not the time to falter.
The task has been monumental. Three murder trials. Endless meetings with attorneys to make deals and get co-defendants to roll over and testify against the others. Innumerable hearings to quibble with other attorneys over legal technicalities.
Then four sentencings. And finally, two death-penalty hearings, including this one for Francisco "Pancho" Martinez Jr., who sits twelve feet to Sargent's right, staring sullenly up at the three judges who will decide if he lives or dies.
Sargent is young, clean-cut and, like the other Jefferson County deputy district attorneys who make up the prosecution team, Mark Randall and Ingrid Bakke, deeply tired of the DuVall case. They are all emotionally and physically spent.
It has been difficult to get up each morning and generate the energy necessary to continue this course--and it's been even harder since the first death-penalty hearing for co-defendant Danny "Bang" Martinez Jr. in late April. Not that Sargent believes any less in what he is doing, but like an actor in a play that keeps going night after night, he finds the material has grown old, flat. He feels the danger of Brandy becoming two-dimensional, a footnote in the law books--instead of a young girl who died so horribly at the hands of these young men.
Now, on May 19, less than two weeks shy of the day two years ago when Brandy DuVall's savaged body was found alongside Clear Creek, the finish line is in sight. Lead defense attorney Dave Kaplan has delivered his closing arguments, but the last word will be Sargent's.
"Mr. Kaplan ended with a point that I think deserves some comment," he says. "Can we explain? Can we understand Mr. Martinez?
"One of the things I think we do in courtrooms is, we lose sight of the focus. I have great respect for what mental-health professionals do in attempting to understand behavior, understand causes so that it can be treated. But that is not the focus here.
"To understand does not mean to excuse. Mr. Martinez has told everyone who would listen what he's about, who he is. He said in 1989 to John Malloy, 'I enjoy hurting people.' He told Stacy Pike, 'I want to be famous for killing people.' He told her that his favorite hobby was shooting people because he 'liked to watch the bodies jump.'
"We can hope to understand and to explain what combination of forces make Francisco Martinez the man he is. But when we're done with that, when we're done with explaining who he is, the question is: So what? What do we make of it? Do we excuse him?"
As Sargent speaks, 25-year-old Francisco keeps his eyes averted. His mouth hangs slightly open; he looks like a man who realizes this is it. The end. He no longer has the demeanor of the gangbanger who at his murder trial last August smiled and smirked at Brandy's family, then told Sargent, "Fuck you, you pussy," when the prosecutor intervened.
Francisco's hair has been shaved to a dark stubble that matches his goatee. He wears a long-sleeved white dress shirt that hides the gang tattoos on his arms and covers the long, ugly scar on his belly where a surgeon opened him after he was shot in 1994; the shirt fits loosely, even across his thick shoulders, so that it covers the electric-shock belt that bulges from his lower back.
Francisco wasn't in this Jeffco courtroom for most of the hearing. On the first day, his lawyers had asked that he be allowed to stay in his cell, because he didn't want to hear the bad things they were going to say about his family in their effort to save his life. Of course, that meant he wouldn't have to hear from Brandy's family about the suffering he'd caused them, either.
But Francisco has been back in the courtroom for the last two days, to listen to defense psychologists explain why he had joined a gang, explain his propensity for violence, explain his inability to make good decisions while drunk and under stress.
Francisco's lawyers also look worn out. Pat Ridley slumps in his chair beside the defendant, a pen in his mouth. Next to Ridley, still jotting notes and passing them to his co-counsels, is Dean Neuwirth, a legal expert brought in to counter the lawyer from the Colorado Attorney General's Office who sits with the prosecution to aid on matters of legal precedence in death-penalty cases.
And finally, closest to the podium, is Kaplan, the lead counsel who ended his remarks by recalling the shootings at Columbine High School a month before. A civilized society, he said, needs to ask the questions about what events precede "something this horrible...whether Brandy DuVall or Columbine," and what might have been done to prevent it.
The defense team fought hard and bitterly--some on the prosecution side of the aisle would say they were outright obstructionist--filing more than 300 motions just between the end of Francisco's trial early last September and this hearing, then jumping up to object at what seemed every comment made by the deputy DAs or prosecution witnesses. But as the attorneys on this side would argue--and argue they do--how much is too much when a man's life is at stake?
And so Kaplan and his colleagues made their arguments that Francisco's abused, violence-marred childhood pushed him into a gang and down a path of violence.
On a less philosophical note, Kaplan also argued that there was no proof beyond the questionable word of Sammy "Zig Zag" Quintana Jr. that Francisco was the man who actually wielded the knife and stabbed Brandy 28 times. The jury had not been asked to determine if they believed that Pancho was the so-called triggerman or just one of many culpable in the girl's death, he noted. And so to single him out for lethal injection would be unfair.
But Sargent now counters that the jury believed Quintana--and so should the panel of three judges. The question, he says, is what punishment fits Francisco's crime and character.
"By whatever combination of forces brought Francisco Martinez to be the man he is," Sargent continues, "he is an absolutely dangerous man...All you've got to do is listen to him if you want to know what makes him tick, what he is about.
"The experts hired by the defense--and I don't mean to belittle their attempts to explain him--but they carefully avoided asking the direct question 'Why did you sodomize Brandy with the broom?' because they knew the answer.
"You know the answer. It is in his psychological makeup that he enjoys hurting other people."
The courtroom feels lopsided. Francisco's family and friends--including at least two girlfriends and a wife who have all borne his children--had filled the second and third pews behind the defense table for most of the eight-day hearing. (For security reasons, only defense-team investigators and defense attorneys who dropped by to watch the proceedings had been allowed in the first pew.) But today just Francisco's mother, Linda, clad in a T-shirt, shorts and dark glasses, and one younger woman are seated on Pancho's side.
Behind the prosecution table, the second and third rows are packed with members of the press, along with employees of the DA's office and court personnel who want to witness the last great battle in one of the most horrific cases in anyone's memory. The row closest to the prosecution is filled with members of Brandy's family, sitting as close as possible to one another, holding hands, some resting their heads on nearby shoulders.
For the past two years, this has been their life, too. Day after day, week after week, sitting on hard wooden benches that seem designed for discomfort; the thin pillows handed out by victims' advocates provide scant comfort.
But what could comfort them? Physical inconveniences pale beside the ordeal of listening again and again and again and again and again to how members of the Deuce-Seven Bloods raped, sodomized, tortured, humiliated, tormented and, finally, stabbed Brandy, leaving her to die alone in the dark. As they listened to different young men recall ad nauseam Brandy's screams, her pleas for her life, they were powerless to stop the tears or stifle sobs.
And then to hear defense lawyers try to lay the blame on one of the others...or contend that their clients were too drunk to be accountable, or too frightened of other gang members to stop the insanity.
In March the family sat through the sentencing hearings for the prosecution witnesses, who pleaded for mercy when they'd shown none to Brandy. Having now found religion and a conscience, they apologized to the relatives of the girl they'd treated like a piece of meat--one even biting into her breast like an animal. And her family was supposed to forgive them?
But none beat the excuses given at the death-penalty hearings. The first had been for Danny Martinez Jr., the reputed leader of the Deuce-Seven, just a few weeks before. Danny was no relation to Francisco, but as Danny's sister had testified, they were more like brothers than biological brothers.
And now here was Francisco, the man accused not only of stabbing Brandy but of being the most brutal during the three to four hours of torture that preceded her death. A man described by prosecutor Randall as "ultra-evil." Francisco, too, had apologized, just before closing arguments, saying Brandy "did nothing to deserve what happened." As if that was even a question. But of course, Francisco had also avoided making any admission beyond "my participation" in the events that night. After all, there are appeals to consider.
For Brandy's mother, Angela Metzger, it was particularly hard to listen to the defense teams talk about Danny's and Francisco's mothers. She'd heard enough mean comments about her own parenting--What was a fourteen-year-old girl doing on Federal Boulevard at midnight?--to wish no more anguish on those women. They would have to live with the guilt of hindsight. It was a twisted irony that the prosecutors had tried to point out that those other mothers weren't as bad as their sons' lawyers made them out to be.
Then there were the psychologists hired to examine Francisco, although not so carefully as to ask him what possibly could have been going through his head that night. "The mental-health mitigator," Sargent says, referring to the defense's arguments used to combat the prosecution, "tells you what to make of this man in this state of mind. But it is only an excuse.
"It only lessens the blame if it substantially impairs his ability to recognize right from wrong...We've got to, if we have any system of laws, start with a basic premise of free will. That we are responsible. We are able to make choices. And we are responsible for choices we make, both good and bad."
Walking over to a large black board where the defense has created a timeline showing how Francisco's unhappy childhood impacted his monstrous adulthood, Sargent points to several photographs of the defendant as an infant and boy. "I don't mean to demean or belittle what Francisco Martinez may have gone through as a child," he says.
"I have sympathy for this child of one or three or eight who may have seen more than any child should be exposed to...And I have sympathy for that child who saw too much, perhaps.
"But again, as sympathetic as you may be for that three-, six-, ten-year-old boy, that's not who stands before you today. In between those early years lay years of intervention, years of alcohol counseling, years of intensive individual mental-health therapy.
"We could hope that he could be given more programs when he was little...But it's not society's fault because we didn't offer him enough programs. It is his fault. He owes us something as well. That he failed to learn, failed to change his behavior, is not our fault. He has to be held accountable for those decisions he made.
"What role does sympathy play?" Sargent asks. "You're asked to feel sorry for what he experienced in his life."
"When one person kills another," Sargent quotes, "there is an immediate revulsion at the nature of the crime. But in a time so short as to seem indecent to the members of the family, the dead person ceases to exist as an identifiable figure.
"To those individuals in the community of goodwill and empathy, warmth and compassion, only one of the key actors in the drama remains with whom to commiserate, and that is always the criminal.
"The dead person ceases to be a part of everyday reality. She ceases to exist. She is only a figure in a historic event. And we inevitably turn away from the past towards the ongoing reality, and the ongoing reality is the criminal.
"He usurps the compassion that is justly the victim's, and he will steal the victim's constituency along with her life.
"Don't let that happen. He does not deserve your sympathy. He does not deserve your compassion. He doesn't deserve your mercy. And most of all, he does not deserve your leniency."
Sargent closes the book and picks up a photograph. He holds it up as he approaches the judges. "Your compassion," he tells them, "should be justly reserved for this fourteen-year-old girl. This little girl whose life he stole.
"And," he says turning toward the pews behind him, "for the family...he left behind with his actions. Imagine the pain that they feel every day. As painful as it was to listen to them in the few minutes they described what her loss has been to them, and how they feel...how that tears them apart...Imagine how they live with that every single day, and will until they die.
"Those are the people who deserve your compassion, your goodwill," Sargent says, then points to Francisco. "Not this man.
"There is no other choice but to give him the ultimate punishment, and that is the sentence of death."
For a moment, the courtroom is absolutely silent. Then a sob escapes from Brandy's mother--a brokenhearted reminder that for some, this will never be over.
A little before midnight on May 30, 1997, fourteen-year-old Brandy DuVall waited at a bus stop at South Federal Boulevard and Florida Avenue for a ride back to her grandparents' home. She was wearing a bright-red Chicago Bulls jersey bearing the number of her favorite player, Michael Jordan.
It was the shirt, a favorite of the Bloods gang, that attracted the five young men in the car that circled the block and came back to where Brandy stood. The driver of the car, David "Baby G" Warren, and his brother, Maurice, aka "Trap," were members of a small subset of the much larger Crenshaw Mafia Gangster Bloods known as the Deuce-Seven. With them were Jacob "Smiley" Casados, a gang wannabe, and two others whose roles in this tragedy were minimal.
Why Brandy got in the car that night would remain an unanswered question. Was it voluntary? Was she abducted? Was she offered a ride home? Did she accept an invitation to a party? That's what the gang members would claim, although few believed them.
They took Brandy to a small house in Adams County, near Federal at 3165 Hawthorne. The house was rented by Jose Martinez Jr., aka "Uncle Joe," who was sleeping in a bedroom with his son and granddaughter when they brought Brandy in.
Also at the house were the core members of the Deuce-Seven, a Hispanic gang comprising mostly family members and friends from Five Points. The Deuce-Seven name came from the address of a home at 2727 California Street, which was owned by the grandmother of Danny and Antonio Martinez, two of the gang's founders. "Bang" and "Boom"...the sounds a gun makes.
Jose Martinez was the boys' uncle through their mother, Teresa Swinton. Danny was at Uncle Joe's that night, but Antonio, who was studying art and leaving the gang behind, had left after an argument with his brother. Also at the house was another Deuce-Seven founder, Francisco "Pancho" Martinez Jr., and a cousin of the Warren brothers'. Danny, Antonio and Francisco had been inseparable since elementary school and as young teens were "beat in" to the CMG Bloods at about the same time.
The last two members of this core group at Uncle Joe's were Sammy "Zig Zag" Quintana Jr., a first cousin of the Martinez brothers through their mothers, and the youngest member, sixteen-year-old Frank Vigil Jr. It was a measure of his status in the gang that he'd been nicknamed "Little Bang."
Sammy Quintana took Brandy into the bathroom and gave her cocaine. She was then stripped by Francisco, who carried her into a back bedroom. The remaining hours of her life were pure hell.
At about 3 a.m. on May 31, a Suzuki Sidekick wound its way up Highway 6 from Golden. Sammy was driving his car; Francisco was sitting in the front passenger seat. Crammed into the backseat were Danny and Frank. Between them, hooded so that she couldn't see, was Brandy, pleading for her life.
The next afternoon, the bruised and battered body of Brandy DuVall, clothed only in an oversized pair of jeans, was found at the bottom of an embankment at highway mile marker 269.5 in Clear Creek Canyon. Her hands had been cuffed behind her, and she had been stabbed 28 times. Her carotid artery and jugular vein were severed; she had bled to death.
A vicious bite mark was evident on her left breast. Later, a pathologist discovered that her anus had been sliced open with a sharp instrument, probably a knife, and then additionally torn with some object.
The following day, a Sunday, Brandy's mother finally found her missing daughter when she arrived at the Jefferson County coroner's office and identified Brandy's body. Wake up, baby. Wake up.
An anonymous tip led Jefferson County sheriff's investigators to Jose Martinez, who recounted what had happened at his house that night and identified the parties responsible. They were soon arrested, all except for Danny Martinez Jr., who was on the run and wouldn't be apprehended until January 1, 1998. Before that, Quintana, the son of a Denver sheriff's deputy and already the suspect in another homicide, began talking. He was soon joined by Casados and the Warren brothers.
The ride of the Deuce-Seven was coming to an end.
Of the seven original defendants in the Brandy DuVall homicide, by late April only two were still waiting to learn their fate--the two facing the death penalty: Danny Martinez Jr. and Francisco Martinez Jr.
The other defendant who'd gone to trial, Frank "Little Bang" Vigil, had been automatically sentenced to life in prison without parole following his conviction in February 1998. Although there was no evidence that he'd sexually assaulted Brandy or raised a hand in her death, he had been the first to suggest she had to die and had then helped escort her into the mountains for her execution. Only his age, sixteen at the time of his trial, had saved him from a death-penalty hearing.
The four remaining defendants--those who had testified against Frank, Danny and Francisco in exchange for plea bargains that dropped the first-degree-murder charges--had been sentenced in March by Judge Michael Villano. The first of these had been the most important to the prosecution: Sammy Quintana Jr.
Quintana had pleaded guilty to two second-degree-murder charges: one for Brandy DuVall and the other for his participation in the murder of nineteen-year-old Venus Montoya, the unintended victim of a gang quarrel in July 1996. Without Sammy, it was doubtful the authorities could have made a case against the other gang members involved in the Montoya homicide--brothers Alejandro and Gerard Ornelas. Nor would the prosecution have been certain of winning the DuVall cases without his corroboration of other witnesses' testimony. And Sammy was the only witness to say what happened after they left the house of "Uncle Joe" Martinez.
Sammy was proof that gangs could reach into any neighborhood, into any family. His parents had moved from their old Five Points neighborhood to the suburbs in an effort to get away from the crime- and drug-riddled streets. His father had became a deputy sheriff in Denver, his mother an executive secretary. They had given their children all the right tools for success--music lessons, soccer clinics, good schools and a safe environment. Still, it had not been enough to save their son.
At Sammy Quintana's sentencing, members of Brandy's family had asked for the maximum. As they had promised three juries who had heard Sammy testify against other defendants, the prosecution also asked for the maximum in both cases--48 years to run consecutively.
Venus Montoya's grandmother, however, had told the judge that she had forgiven Quintana and would accept whatever punishment he deemed necessary.
Sammy's weeping parents had pleaded for mercy, citing their son's efforts on behalf of the prosecution, efforts that might cost him his life in prison. They blamed his "loss of direction" on three factors.
First, their own divorce in 1991, which had left Sammy depressed and looking for a sense of belonging that he found in a gang. Second, his rejection by the Denver Police Academy after he revealed that he had smoked marijuana. And third, the influence of his cousins Danny and Antonio Martinez.
Sammy's attorney, Jim Aber, the chief deputy for the state's public defenders' office, praised Sammy's "truthfulness" on the stand. "Mr. Quintana has really brought down the Deuce-Seven gang and the CMG Blood gang," he said. In Sammy, he added, he'd seen "more remorse and more rehabilitation than I think in any other client I've ever seen."
Aber requested that the judge impose "an appropriate sentence of something less than 96 years...If the Court imposes a 96-year-sentence, everything that he's done for the last two years doesn't really buy him anything, because he will die in prison. He should receive less than the co-defendants who have received life sentences, Your Honor."
And then Sammy Quintana, handcuffed, shackled and in tears, asked that his efforts to "make things right" be considered. "It's not going to bring any closure," he said as families on both sides of the aisle wept. "But I've tried to make it so that there's no unanswered questions. That they won't have to ever wonder what happened that night.
"There's going to be hundreds of whys. I ask myself why every day. Every day I wake up, I ask why, why my life had to turn out like this. But it's because of decisions I made. There's nobody to blame except myself.
"I know one day there's going to be a lot of questions that I'm going to have to answer to my little girl. She's going to wonder why her dad's in jail. She's going to know that her dad made a lot of mistakes in life, and he made some bad choices, and he caused a lot of pain to a lot of people. But she's going to also know that in the end her dad did what's right and that he changed his life, and he did his time a lot different than a lot of people.
"I'm ready to accept whatever sentence you give me. Thank you."
Villano's 26 years on the bench had ended with Francisco Martinez's trial. But he'd agreed to come out of retirement as a senior judge to handle the sentencings, and then again in May for Francisco's death-penalty hearing. Now he told Quintana that although he recognized his efforts had helped resolve the two cases, there were some things that no amount of remorse could make right.
"I can't think of any more horrible acts than have occurred in these cases," Villano said. "You've affected the lives of a lot of people. The lives of the attorneys, the lives of the jurors that heard the cases. Nobody can imagine this type of thing happening until they actually listen to the telling of the events through the testimony of witnesses."
He then sentenced Quintana to two 48-year sentences to run consecutively--96 years all told. "Let me say that I hope you do well for people," the judge added, "because you owe it to society to do that."
The sentencing hearings of the other defendants--David and Maurice Warren and Jacob Casados, all of whom had pleaded guilty to first-degree sexual assault--went much the same way. Their attorneys pointed out that they, too, were abused as children and lacked parental guidance and good role models. But they'd all since found Jesus and changed their wicked ways.
David Warren, who had been the one to bite her on the breast, even fell to his knees, crying and apologizing to his victim's family. "I pray to God to some day ease my mind, because this will always be a cross I have to bear," he said.
Villano was not impressed. "There's a basic decency that we expect in all people," he said at David Warren's sentencing. "It's not hard to know that hurting or killing someone is wrong. It's not hard to know that taking advantage of a fourteen-year-old girl is wrong, and these are basic things that aren't the result of your upbringing."
David Warren was sentenced to 32 years in prison. His brother, Maurice, described by defense attorneys as one step shy of being declared mentally incompetent, received sixteen years. And Jacob "Smiley" Casados, who was beat into the gang that night, got twenty for his one evening as a member of the Deuce-Seven.
None of them had been with Brandy when she was stabbed...just when she had been raped and tortured.
April 27, 1999
"The presumption of innocence is gone...Mr. Martinez sits before you, a convicted murderer."
Tall and business-like, Deputy District Attorney Ingrid Bakke delivers for the fourth time the prosecution's opening statement in the DuVall case. But when she reaches her conclusion a few minutes from now, she won't be asking a jury to convict the defendant of Brandy's rape, kidnapping and murder.
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 committed...to 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.
No jury in Colorado had ever sent someone convicted of felony murder to death row, although the option remained on the books. Nor would the panel of judges assigned to Riggan's case. On April 16, they unanimously decided against the death penalty, citing the absence of intent. Riggan was sentenced to life without parole.
Afterward, even District Attorney Dave Thomas conceded that his office had not expected to win that one. But it was necessary to test where the panels, as opposed to juries, would set the death-penalty bar.
Danny Martinez's hearing was the second to go before a panel, but only by a matter of days. In Denver, another panel would soon begin hearing the case against Jacques Richardson, the rapist who'd murdered Capitol Hill resident Janey Benedict.
Both of these cases represented further steps up the ladder in terms of culpability. As with Riggan, the jurors in the Richardson case had not been able to decide if he'd intended to kill Benedict when he hog-tied her, leading to her death by strangulation. Unlike Riggan, however, Richardson had a "serious" criminal history as a serial rapist--such histories being one of the aggravators judges can use in making their decision.
Danny Martinez presented another problem. He had been convicted of first-degree murder after deliberation. However, the prosecution theory presented to the jury was that while Danny had participated in the rape and torment of Brandy DuVall and had "called the shots" as the gang's leader, it was Francisco Martinez who'd stabbed the girl to death. The wording in the first-degree-murder count included the "complicity instruction," which meant the jury didn't have to find that Danny had actually done the stabbing.
In the past, Colorado juries have been reluctant to sentence so-called complicitors to death. The question was whether a panel of judges would follow suit.
Danny's life would hang on that issue.
Forrest Lewis begins the defense portion of Danny Martinez's hearing by trying to shift the responsibility for Brandy's death onto Sammy and Francisco.
It was Sammy who gave her cocaine when she was brought into the house and Sammy who was the first to have sex with her, he says. And Francisco, he reminds the court in a soft Southern accent, was the brute who shoved a broom into her anus, kicked her "like a football" and eventually stabbed her in the neck while Sammy held her head down.
Danny hangs his head as his lawyer smears his friend Francisco. In the months preceding his trial, he'd told his mother that he couldn't accept a plea bargain that would spare him the death penalty (a deal that was never formally offered); he couldn't leave his childhood friend to face such a consequence on his own. Especially because Danny's lawyers had told him that any such agreement would hinge on him giving a statement implicating Francisco.
Danny now sits silent as Lewis, an experienced attorney respected on both sides of the aisle, paints Pancho as the evil instigator of all the worst atrocities while describing his own client as essentially a drunk bystander during the murder. "The only evidence of any weapon in his hand was after the fact," Lewis notes, when Danny retrieved the knife that Francisco had dropped. Or so Sammy Quintana had claimed.
Lewis quickly moves on to Danny's tough childhood in Five Points. Both of his parents were drug users. Danny Martinez Sr., in particular, was "a bad influence" who lured Danny away from a program in Arkansas where he was doing well and had just completed his GED.
At this, Danny's father, a short, stocky man, stands up in the middle of a pew. "Well, excuse me!" he says loudly, then stalks from the courtroom.
Lewis takes no notice. He says that others, including a teacher and probation officer, will be called to the witness stand to talk about Danny's good points. The panel will hear that Danny's sister, Raquel, and brother, Antonio, had dreams and "got out...But Danny did not believe that he could get out."
None of this will be used to excuse Danny's participation in some of the horrible events of the night in question, Lewis notes. "He is guilty of complicity," the attorney concedes. But the "blood of Brandy...is on the hands of Francisco.
"He'll never get out of prison. He'll never see his children except through bars. He should be in prison for the rest of his life, and he will be...But the death penalty...is excessive."
Brandy was only fourteen years old, and she was shy."
Once more, Angela Metzger finds herself standing at a podium trying to describe to strangers the little girl she remembers, not the wayward teen the defendants and their lawyers made her out to be. "When she went swimming, she would wear jeans and almost drown rather than show her body," she says. "She was wise and smart...I used to say that when I grew up, I wanted to be just like her."
Once more, Angela begins to cry, her voice becoming high and tight in an effort to keep control. She stamps her foot as she gathers herself together. Danny, who has been watching her, looks quickly away.
"I was robbed," Angela says. "She didn't do nothin' to deserve this...And when she died, the best part of me died along with her."
This time, Angela's testimony has a new twist. She recalls her horror when the Columbine shootings came on the news. "I was thinking about the parents waiting to find out if their children were okay. I remembered what it was like, waiting for Brandy to call, and my heart went out to those people. Unless you've gone through it, there are no words for it."
As she describes seeing her daughter's body at the coroner's office, Angela closes her eyes and reaches a hand toward the judges, trying to grasp something that is no longer hers to hold. Wake up, baby. Wake up.
In his seat, Danny blinks rapidly and rubs at his eyes. There are some things that no amount of remorse can make right.
"You know, I never thought I would ever have to stand up and try to convince people how much I loved my daughter," Angela says quietly. "I wish to God you all could have seen us together, and there would be no question about how we felt.
"She was my life...And I would give my life for just five minutes, right now, to tell her how much I love her."
Angela takes her seat, and Judge Anderson announces that the court will be in recess through lunch. It's a little after 11 a.m.; at 11:20 a.m., he and many others in the city, the state and the country will observe a moment of silence for the Columbine victims.
Angela will sit in silence, thinking about her daughter as well.
When this horrible thing happened," says the tiny old woman, "I couldn't speak for a while...My God, it was like a madness."
Rose Vasquez and her husband, Paul, adopted Angela when she was a child. Of all of their granddaughters, they been the closest to Brandy. She had been staying with them until the night she disappeared, waiting to move into a new apartment with her mother the next day.
They'd dropped her off near Federal Boulevard earlier in the evening so she could catch the bus to her friend's house, as Brandy had done many times before. But for some reason, Rose recalls, she'd felt uneasy and sent a prayer after the retreating form of her granddaughter, "asking the good Lord to take care of her."
Now nothing will ever be the same. Friends and neighbors no longer come by, and "everybody is afraid to say the wrong thing," she says, then sadly adds that "Angie and I don't communicate anymore...I guess she's struggling with herself.
"I did not realize how quick a life can go and leave such an emptiness."
Some of her memories she won't share, Rose says, like the times her five-foot-tall granddaughter would sit her down "for a woman-to-woman talk." But for the judges, she recalls Brandy's first rose, just a few weeks before her death, given to her by a sixteen-year-old boy who'd driven her home from school. "The rose and the boy were soon gone," she says. As was Brandy.
The family could have lived with Brandy's death, "would have missed her, but we would have gone on." But the manner of her death--the horrible things that were done to her, the humiliation and shame she must have felt--was impossible to get past.
Brandy's body was identified by her mother on a Sunday. The next day, Rose says, the telephone rang, and when she answered it, "I heard little Brandy's voice. She said, 'Bye, Grandma,' then the phone went dead and there was no other sound."
Rose pauses a moment. Her thin shoulders shake as she cries, and Sargent puts a hand on her arm to steady her. She takes a deep breath and goes on.
Now, when she dreams of Brandy, "I can't see her face," she says. "I can't touch her or hear her or hug her. All I can do now is pray and cry and visit the cemetery. But a cold stone does not satisfy the arms of a 74-year-old lady."
Brandy's grandfather, Paul, is next. He is nearly as short as his wife, a friendly man with a gravelly, lightly accented voice.
"She was my youngest granddaughter," he begins. "I needed her and she needed me. We were friends and companions."
His memories are of bicycle rides to the ice-cream store and watching movies together. Brandy, he says, was free to ask him for money. But she always insisted on earning it with odd jobs and chores.
It was their dream to go to Disneyland. Her brother, Tim, and cousin had gone years ago, when she was too small to make the trip. "But I told her that one way or another, we would go in 1998."
That dream had died with Brandy. Two years later, a good and decent man is reduced to tears, wishing they had gone sooner. "If I could have only been there," he says brokenly. "I would gladly have given my life to save her."
When Brandy was alive, out visiting one of her friends at night, he would lie awake, listening for her footsteps, waiting for her tap on the window to be let back inside. Now when he sleeps, he swears he still hears her footsteps and jumps out of bed to greet her. "But nobody's there," he says.
Harder still are the nights when his sleep is interrupted by cries from Brandy. "Grandpa, help me, help me." But after he's awake, there is only silence as he lies still, listening.
April 28, 1999
It had taken the prosecutors just one day to state their case. Their attempt to bring a Denver Gang Unit officer to the stand to testify regarding Danny's position in the gang's hierarchy was thwarted by the defense; attorney David Lindsey argues that while the rules of evidence regarding hearsay are relaxed at sentencing hearings, the officer's testimony about what other gang members say would conflict with Danny's constitutional right to cross-examine those witnesses.
So after investigator Simmons went through the evidence for the judges--describing the various photographs, pointing out where Brandy's blood was found on the backseat of Sammy Quintana's car--the prosecution rested.
The following day, it is the defense team's turn. Danny enters the courtroom looking tired, as though he didn't sleep well after the previous day's emotional testimony. He asks supporters if his mother is in the courthouse and smiles only after he's told that she is waiting in the hallway.
It is up to the defense to present step two in the death-penalty process, to discuss any of the eleven statutorily allowed "mitigators" that apply. Mitigators are essentially anything in the defendant's favor that might excuse his behavior somewhat and balance out the aggravators--such as the defendant's age, whether the defendant was under duress, or whether the defendant's participation was relatively minor, though not so minor as to be a defense from prosecution.
While aggravators must be proven beyond a reasonable doubt, there is no burden of proof regarding mitigators, which can include the rather open-ended "any other evidence, which in the court's opinion bears on the question of mitigation." The only caveat is that the evidence is supposed to be relevant to the defendant's character, background and the circumstances surrounding the crime.
It is this last point that comes into contention after Lindsey calls defense investigator Pamela Ferguson to the stand and asks her about death-penalty statistics that she obtained from the NAACP Legal Defense Fund. Sargent objects, saying the information is not relevant to Danny. But Lindsey counters that such statistics provide a "moral sense" of what has occurred. Anderson, who as the trial-court judge rules on the nitty-gritty of this hearing, calls for a recess to confer with the other two judges.
Back in session, Anderson overrules Sargent's objection and allows Ferguson to make her report under the "any other evidence" portion of the mitigation statutes. The statistics, Ferguson says, show that of the 6,331 people sentenced to die since the U.S. Supreme Court reinstated the death penalty in 1976, only 76 were "non-triggermen."
If Danny needed anything, he'd ask me. If I needed anything, I didn't even have to ask. We were just there for each other."
Danny's sister, Raquel, clutches a tissue as Lewis gently guides her through his questions. The hearing has reached the stage where the defense is trying to highlight Danny's good qualities while emphasizing his difficult childhood.
Raquel is Danny's older sister. She works for a communications company and has three children. She clearly loves her brother despite the crimes he's been convicted of, and it isn't difficult for Lewis to wring out the tears--particularly when he shows her photographs of Danny with his twin sons.
There are more tears when Lewis mentions the time when they were children and their mother placed them in foster care while she straightened out her own life. Danny and Raquel had been sent to one home and their baby brother, Antonio, to another.
"We lived terrible," she cries. She and her brother were kept in a basement, sleeping on mats, and forced to use containers when they had to go to the bathroom. If they got into trouble, they had to lie on the ground while their caretaker spanked the bottoms of their feet.
The ordeal didn't last long. Raquel managed to relay the abuse to a social worker, who placed them in the same home as Antonio. "I never talked about it with Danny," she says. "I don't know if he remembered."
Once reunited with their mother, they all moved into their grandmother's house, at 2727 California Street in Five Points. It was a neighborhood in which crime and drug use was rampant. Both of their parents were users. There was a brief reprieve when Theresa married Bill Rollins, a good man who was the first decent role model the boys had known. "That's my dad," Raquel tells Lewis. But her mother's drug problems cost Theresa that marriage.
As Danny grew up, he got involved with gangs and selling drugs. No, Raquel says, she wasn't aware that he sold drugs to his own father. But yes, she did know he sold them to his uncle Jimmy.
It was while living at 2727 California that Danny met his friend Francisco. They were soon inseparable. "Without being biological brothers, they were brothers."
"Was the loyalty factor strong?" Lewis asks.
"Obviously," Raquel answers. "It's why we're here."
Raquel testifies that she and Antonio had dreams of getting out of the neighborhood and eventually made it. Danny had dreams, too, "but they just didn't come fast enough."
Before he turns her over to the prosecution for cross-examination, Lewis asks if there's anything she wants to say to Brandy's family. Raquel nods and dabs at her tears.
"I am sorry," she says. "I have two daughters and can't imagine what you are going through. But I know my brother probably better than anybody. He's not this terrible person he's been made him out to be...He's not."
Sargent stands to question Raquel. His praise of Raquel is so effusive that, if you didn't know better, you would be surprised by what side of the aisle he sits on. But that's the prosecutor's point: Despite what the defense wants to imply, Danny came from a loving, supportive family and had his chances to escape the hole he dug for himself. After all, Raquel did.
"You tried to help Danny?" he asks.
"We help each other," she replies guardedly.
"You tried to keep him straight?"
The prosecutor notes that Raquel had written a letter of support to the judge in Danny's last drug case--a letter in which she promised to help her brother. "You wanted him to succeed?"
"You did not have a wonderful childhood?" Sargent asks.
"Despite that, you chose to get out and you did."
"And you have a job of which you're proud?"
"And your brother, Antonio, chose to get out and did?"
"And again, that's something to be proud of?"
But Danny didn't make that choice, Sargent points out. And wasn't it true, he asks, that anyone who stays mixed up in gangs was essentially looking at one of two ends: death or prison?
Although Raquel disputes this, she can't come up with other options. She also avoids Sargent's question about Danny's role as the leader of the Deuce-Seven. "He had the respect of his peers," is all she admits to. "He earned their respect."
Sargent asks about the origin of the Deuce-Seven name.
"It was just an address--that's all it was," Raquel replies.
"But it was an address he chose as the name of his gang," Sargent notes. He'll leave it for closing, but one of the points the prosecution wants to make is that Danny and Antonio chose to establish a Bloods gang in the middle of a Crips neighborhood. That sort of in-your-face attitude reflected the boys' aggressive nature.
Referring to a defense investigator's report after an interview with Raquel, Sargent points out that she'd said Danny wouldn't fear Francisco. It's an important issue for the prosecutors, because it contradicts the defense's contention that Danny couldn't have stopped Francisco from killing Brandy.
"Correct," Raquel replies.
The issue of mitigators' relevance becomes a hotter topic when Danny's defense team begins calling witnesses--not to discuss Danny's character or background, but to contrast him with the evils of Francisco Martinez. The twist here is that many of these people are the same witnesses the prosecution had planned to call at Pancho's death-penalty hearing in May. Once again, the prosecution is overruled.
The first of these witnesses is Doug Moore, one of the Jeffco sheriff's investigators who'd worked the DuVall case from the beginning and had been present in the courtroom during Francisco's trial. Lindsey wants to inquire about an incident during that trial.
Moore says that on August 24, 1998, the first day of the trial, during a recess, Francisco had smirked and laughed at Brandy's family and mouthed the words, "Fuck you."
The defense also calls Brad Clemens, a former counselor at a Department of Corrections facility called Independence House. Under questioning by Lewis, Clemens testifies that he'd known both Danny and Francisco when they were living there and says he considered Danny "a follower" who never ordered Francisco around. By comparison, Pancho was "a monster," Clemens says, who'd once told a therapist that his hobby was shooting people "because he liked to see their bodies jump."
In fact, Francisco was the main reason he got out of counseling, Clemens adds. Not out of fear, but because "dealing with Francisco made me understand the near-hopelessness of community corrections.
"Inmates like Francisco Martinez are hardly far and few between. They have no will, no desire to change."
Your honor, I want Brandy's family to know how very sorry I am."
At last, Theresa Swinton, Danny Martinez's mother, has what she's been waiting for: the opportunity to apologize directly to the girl's loved ones, especially to that other mother who sat on the opposite side of the aisle.
During Danny's trial, Theresa had purposely avoided forcing herself on Angela Metzger. She had wanted desperately to tell Angela that she in no way excused the actions of her son, that she was ashamed and deeply offended by his part in what happened to Brandy. But she didn't know if such contact would be permitted or appreciated.
So she had insisted that her family members go out of their way to be courteous to the other family. Hold doors open. Allow them to enter and leave the courtroom unimpeded. Even during this hearing, when her former husband stormed out of the courtroom, offended by the defense attorney's criticism of his influence as a father, she'd kept her focus. "This isn't about you and me, Dan," she'd lashed out at him. "This is about our son." And ever since, Danny's father had been quiet when he entered and left the courtroom.
At last Theresa will get to say what's in her heart, and she's been told she can do so at the podium without fear of cross-examination. "Not a day or night goes by without you all in my prayers," she tells Brandy's family. "I am tired of being strong and long to grieve with you."
She keeps it short, not wanting to say too much, and turns her attention to the panel. "Judge me with my son," she says. "I contributed to the problem." She is ready to sit down, but there's a surprise.
Prosecutor Bakke wants to question Theresa as a rebuttal witness, to contradict the testimony about her failings as a mother. Judge Anderson agrees, and a very frightened Theresa suddenly is sworn in and steps up into the witness stand.
Across the courtroom, Angela Metzger bends over and places her face in her hands. At the defense table, for the first time during this hearing, Danny looks visibly angry--at Bakke, the woman who wants to torment his mother.
"I apologize," Bakke says.
But Theresa is too petrified to respond. What if she says something that dooms her son? There is no helping it now...she'll have to answer as honestly as she can and pray she does no harm.
Bakke is counting on Theresa's honesty. In yet another ironic twist, it's the prosecution that's been defending Danny's family.
When Danny's aunt, Nancy Laes, had testified earlier about problems in her sister's household and life--the drugs and volatile relationship with her first husband--it was Bakke who got her to concede that the children were clean and well-cared for by the larger extended family. And that after Theresa kicked her drug habit, she had fought courageously, if futilely, to get her boys out of the gang.
While her nephew may have had a rough childhood, his aunt conceded, it was "not one that leads to this," not to rape and murder.
Now it's Theresa's turn to be rehabilitated. Under Bakke's questioning, she admits that she changed her lifestyle in order to help her sons.
"You tried to learn about gangs?" Bakke asks.
"You attended every neighborhood meeting to learn what you could?"
"You got an apartment in Aurora to get your sons away from 2727 California?"
"Yes, I did."
"You placed yourself in a dangerous situation to get your sons away from a gang member's house?"
"I did. They got up and left."
The questioning goes on and on. Theresa warned Danny about the dangers. She kept warning him after her brother was shot at 2727 California and again after Raquel and her baby were in the house during a drive-by shooting.
She did her best to help Danny. She'd even made the fateful mistake of getting him into a drug rehabilitation center rather than sentenced to prison: He was on the run from the center when Brandy was killed.
"Is it true that Danny Martinez made choices that led him to where he is today?"
"He had his chances, just like Antonio?"
There it was. The heart of her family's tragedy. Two sons. One who made a conscious decision to do something more with his life. The other who had given up.
"Yes," says Theresa. Because it is the truth.
April 29, 1999
It's the third and final day of Danny's hearing. The defense begins by calling one of Francisco's former therapists, Stacy Pike, the one who told Clemens about Francisco's hobby of shooting people.
The defense contrasts that with two witnesses who speak on Danny's behalf. One is the teacher in Arkansas who encouraged him to get his GED. Nearly ten years later, she still remembers him. "I liked to teach, and Danny liked to learn," Ann Whitis says. He also talked with her about getting out of the gang lifestyle but said it was difficult back in his old neighborhood.
She and another teacher were so excited for Danny when he passed his GED that they went to find him. But he was gone, and she never saw him again--until coming to court today. She smiles at Danny, and he smiles back.
Danny had gone back to 2727 California, according to the next witness, juvenile probation officer Beverly Hobbs Porter. She had been Danny's probation officer on a drug case when she and Theresa came up with the idea of sending him to Arkansas to get him away from the gangs.
When Danny returned, though, she knew he was running with the Bloods again. This was about the time that he, Antonio and Pancho formed the Deuce-Seven subset of the Crenshaw Mafia Gangster Bloods.
Danny, Hobbs Porter says, treated her with respect. In fact, he sometimes would caution her when not to visit his home.
"Why not?" Lewis asks.
"I got the sense he wanted to protect me, and sometimes maybe there was something he did not want me to see," she replies. If she'd showed up during a drug transaction or when a large group of guys were hanging around, she could have been in danger.
Hobbs Porter echoes earlier testimony from Danny's uncle Jimmy, the man the Crips shot while he was sleeping on the couch at 2727 California and they mistook him for Danny. Jimmy had talked about a neighborhood where 95 percent of the male population used or sold drugs. A neighborhood so tough that when Theresa forced nine-year-old Danny to go back outside and fight a neighbor boy, it was "the right thing to do...If you didn't fight, the other kids would think you were weak and take advantage of you."
The last time she had seen Danny had been several years ago, Hobbs Porter testifies. She had been walking down the street when a car pulled up. It was Danny, and he wanted her to see his twin boys.
On cross-examination, Randall gets the probation officer to acknowledge that boys don't join gangs just for a replacement family. They also do it for money and power.
Even ten years ago, Danny made a choice to leave Arkansas, where he was doing well, "and he chose his friends," the attorney suggests.
"True," she says, and shrugs.
Hobbs Porter steps down from the stand. The defense's case is over.
The prosecution presents a brief rebuttal, calling two Jefferson County deputies to the stand to testify about behavioral problems Danny's had in the jail.
After all the testimony in this trial, these difficulties seem minor. In one instance, Danny was upset about not being allowed to take a shower after playing basketball. "Paybacks are a bitch, as you and your homosexual partner will find out," the deputy recalls him saying.
In a second incident, he got angry about a jail rule concerning the correct wrist for wearing identification bracelets and warned a female deputy, "I'm not in here for selling crack."
"How'd you take that?" Sargent asks.
"As a threat."
At last, both sides rest and it's time for closing arguments. But first Lewis formally announces that his client will exercise his right of allocution--to speak on his own behalf without being sworn in.
While his mother, sister and other relatives weep, Danny shuffles to the podium. A few days earlier, he told his mother that he wanted to apologize but didn't know what to say. "The words won't come," he said. To which she replied, "It only takes two to say, 'I'm sorry.'"
In the end he does a little better than that, without asking for leniency or mercy. "Your Honors, I just want to apologize to both families--my family, Brandy's family--for what has taken place. Also to Your Honors about putting them in a position like this.
"I know it's not easy for nobody, and there's really not no words..." Danny chokes up and has to start again. "...You know, there ain't no words that could really just explain anything about this. But, you know, I just want you to know whatever happens, that's the Lord's will.
"So, you know, there's no--any hard feelings against anybody, no matter what happens, and I'll just make the best out of whatever happens. And thank you for being respectful to my lawyers. Thank you."
Members of the panel, there are no words that can describe the horror of this crime."
It has fallen on prosecutor Randall to make the closing remarks for the state.
"There are no ways to have three judges understand the terror that a fourteen-year-old girl went through," he says, pausing to turn and point at Danny, "at the hands of that man. There's no way to explain his crime.
"But through words and the evidence that we have left of Brandy, the evidence that he left is bloody jeans that she wore when she died, bloody handcuffs that that man placed on her that she wore when she died, bloody jewelry her mother had to identify at the coroner's office, and..."
Randall walks over to the backseat taken from Quintana's car "...a bench seat where she last sat next to him.
"I don't have Brandy here to try to show you what is left of her," he says, but the panel has "the photos of how he left her. And they are horrible, and they are graphic, but they are this crime. They are his crime."
Once again, like a snuff film that keeps rewinding and playing itself, Randall recounts the horror of what happened to Brandy--and Danny's role in it. "Blood is pouring out of her anus, and that man has his penis inside of her. He gets off of her, and he's covered with blood from the waist down.
"That's who Bang is. Actions speak louder than words, and that speaks volumes of who he is. Even the ultra-evil Pancho...didn't do that."
Randall notes that the panel is here to judge the defendant's character two years ago, when the crime happened, "not ten years ago," when Ann Whitis knew a different young man.
"We don't like to think that that type of horror can take place today, but it does, it did, and she went through it. Put yourself in her shoes. An ongoing spiral of terror...an ongoing spiral of pain, suffering, slow death."
The prosecutor recalls the image of Danny handcuffing Brandy and placing a hood over her face. Danny calling the shots. "They get to the canyon, and everybody gets out. Everybody. And they stand five feet from her. Five feet.
"Pancho's got her down. Someone says, 'Hold her head.' Sam does, and they stab her...And then they throw her down the ravine like so much evidence."
After the gang members get back in the car and Pancho announces that he forgot the knife, it is Danny who gets out and retrieves it. "Knew right where to look," Randall says.
"He brings it back and gets in the car. What's his comment? 'We are serial killers now.' Not 'you guys.' But 'We are serial killers now.'"
Later, "Danny boasts" to a sheriff's deputy, Randall notes, referring to the incident at the Jefferson County jail. "He says, 'We're not in here for selling crack.'"
Randall moves to what he knows will be the crux of the defense argument: That Danny was not the man who actually stabbed Brandy.
"He intended her death after her torture. And because he is not the quote, unquote, triggerman, he doesn't die for this? He is involved in every brutality inflicted on this girl--all through the house, the worst one with the sex, in the car, in the canyon.
"The only thing that he does not do is physically place the knife into her body. He has Francisco for that."
Because of Danny, of Francisco, all Brandy's family has left are memories. "And as Rose so eloquently stated, 'A cold stone does not satisfy the arms of a 74-year-old lady.' Because if you sentence this man to life, he will be in prison for sure, but he will be able to see his family. He will be able to see his boys. He will be able to see his mother."
One by one, Randall addresses the aggravators for which he says there is a "landslide of evidence" proving each beyond a reasonable doubt.
First, that Brandy was killed in furtherance or flight from the commission of a felony. First-degree sexual assault. Sexual assault on a child by use of force. First-degree assault. He doesn't dwell on this...he feels he doesn't have to.
The next is that Danny killed a kidnap victim. Randall cites the Colorado Supreme Court's rulings on aggravators that sprang from the case of Gary Davis, who kidnapped, then raped and killed a woman. In October 1997, Davis became the first--and so far, only--person executed in Colorado since 1967 ("The Killer Inside Him," October 16, 1997).
"The legislature reasonably can view as particularly cruel the suffering to which a kidnap victim is subjected through the criminal's calculated terror as the victim is forced to accompany him to her own execution."
The third aggravator is that Brandy was killed to prevent arrest and prosecution. "This factor includes the killing of a witness," Randall says, noting that at one point in the evening, Danny had also discussed killing Jacob Casados and possibly the Warren brothers because he didn't trust them.
"Was she killed because she was a witness to a crime? Certainly," he says. Brandy was asked if she knew where she was and had made the mistake of giving the right answer. "She knows too much. She knows too much. She'd heard their names, seen their faces. She had to die."
The fourth aggravator asserts that Danny was party to an agreement to kill another person. Again, Randall cites the state Supreme Court ruling on Davis regarding the legislature's intent for this aggravator: "The legislature might have concluded that the involvement of two or more persons in a plan to take the life of another multiplies the evil and the depravity of mind requisite to take innocent human life."
Randall returns to the case at hand. "Was there an agreement to kill Brandy DuVall?...How many meetings did they have to talk about the death?
"'Should we bury her in the back?' 'Should we kill her with Sega cords?' It was clearly an agreement that this young girl--when they were done with their fun with her, when they were done with the sex they were having with her--she didn't matter anymore.
"She had to die to protect the heart of the Deuce-Seven."
Finally, Randall reaches the fifth aggravator, "that the offense was committed in an especially heinous, cruel or depraved manner." And one last time he cites the Davis ruling that defines "cruel, heinous or depraved" as "those murders which are conscienceless, pitiless and unnecessarily torturous to the victims.
"Those words...are the very heart of this case, because there was no conscience there. There was no pity there. It was only torture for Brandy DuVall."
Randall knows he must also address the defense's mitigators. First, that Danny was a "minor" participant simply because he didn't actually stab Brandy. "He is in this everywhere, through everything," Randall counters.
Second, that his background explains, perhaps even excuses, his behavior. But it is not fair to blame any of this on Danny's mother, Randall says, or on anyone other than Danny himself. "There is no doubt that Theresa Swinton is hurting, too. There's no doubt that she saw her son going down the path of gangs and drugs and did what she could to turn it around.
"A lot of people stepped up to the plate, and he chose to go the other direction. That's his choice. He made it. He can live with it. The blame is not hers. It's not his sister's...It's not the neighborhood he's in.
"As his aunt stated, he had a hard life, but not one that leads to this...He chose his friends, and he chose the friend that would be with him throughout his life--all the way through the death of Brandy DuVall: Francisco Martinez. Pancho."
Others survived life at 2727 California, got out of the neighborhood. "The neighborhood was tough, in part, to be sure, because of the Deuce-Seven," Randall says. "But what does a tough neighborhood have to do with the torture of a fourteen-year-old girl in 1997?
"Everyone we heard from was able to choose to get out of that life. Uncle Jimmy. Raquel. Theresa. And even his brother, fellow Deuce-Seven gang member Antonio, gets out.
"He doesn't. He doesn't want to."
Step three in the four-step death-penalty process requires the panel to weigh the aggravators against the mitigators. Only if the aggravators outweigh the mitigators is the defendant declared eligible for the death penalty.
But in step four, all legal arguments are dropped and the judges are asked to make what the Colorado Supreme Court called "a profoundly moral decision" on whether the defendant deserves to die.
At last Randall turns to this step. "Why should this defendant die?" he asks, then answers:
"Some crimes are simply so shocking that society insists on the adequate appropriate punishment. He should die because of every horrible, torturous act that he did to that girl.
"But you know something?" Randall asks before pointing one more time at Danny. "The blood's on his hands, it's on his legs, it's on his genitals--it's everywhere that he got the blood of that young girl on him that night. It's not washing off.
"The standard of the death penalty is not Francisco Martinez. The bar is not Francisco Martinez. Francisco Martinez may be a hundred miles above the bar. There's other people that go over that bar, too, and he's one of them.
"Sentence him to the only appropriate sentence there is: Death."
There is hardly time to absorb the impact of Randall's statement before Lewis stands to deliver his closing. This will be his only chance. Because the burden of proof is on the state, the prosecutors will get the chance to rebut him.
"I'm so tired of seeing the carnage in these cases, and there is much in this one," Lewis says, shaking his head. He sounds tired, and with good reason--he was also the attorney for Nathan Dunlap, the nineteen-year-old who executed five pizza-parlor employees and is currently on death row. It was the appeal of the Dunlap case that affirmed the four-step death-penalty process.
"This is the story of a beautiful little girl whose life was taken needlessly and brutally. And it's easy for all of us on both sides of the courtroom to be angry, and to be frustrated, and to feel sympathy, as we should, for her family.
"It's easy to see mothers from both sides of the courtroom wishing they could have done more for their children--one wishing they could have saved her life, one wishing that she could save two lives.
"It's also the story of two brothers and the road that they took, and the forks in the road. We make choices in our lives, for which we are responsible. But there are many factors that go into those choices, and some of them are very strong.
"We don't choose where we're born. We don't choose who our parents are. We don't choose where we live. We don't choose what's going on in the world around us."
But why, he asks, "would anybody choose...I'm sorry, Danny. Why would anybody choose Francisco Martinez as a friend?"
Danny shows no reaction, but Lewis hasn't waited for one. Instead, he turns to the judges and asks, "How many times have you seen a young person in front of you and you said, 'You know, young man, young woman, you've got to change your friends. You've got to get away from these people.'
"They don't want to listen. So few of them are ever able to break free. He didn't choose for Francisco to be right next door to him, but Francisco was there...And no matter how evil someone is, there is a loyalty that develops with family and friendship, a loyalty that's hard to break, a loyalty that's misguided, a loyalty that's destructive, a loyalty that's dangerous, a loyalty that's not logical or analytical. But it's strong."
Danny has many good qualities, his lawyer asserts. "Would the real Danny Martinez please stand up?" But he made bad choices, especially when he chose to leave Arkansas and return to Denver.
"Oh, God, what a horrible choice," Lewis says. "He's not a killer. This man was not on the road to killing anybody. He's no Francisco. He's not an evil person." Except for a prior drug conviction or two, Lewis notes, Danny qualifies for the "no serious prior criminal history" mitigator.
And now the defense attorney moves closer to the argument that he hopes will sway at least one member of the panel: that Danny was not the principal player in Brandy's death. That if Antonio had persuaded him to leave when he did, the same atrocities and murder would have occurred.
They would have occurred because Sammy and Pancho would have still been there, he says. Particularly Pancho, who turned the sexual assault of Brandy DuVall from "inappropriate and disgusting" to "the unthinkable."
Even though Danny stayed, Lewis adds, he was not the leader. "There's a train that Francisco set in motion, but no one's at the wheel," he says. "This was a bunch of people who made unthinkable choices, who had blind loyalty to each other, who didn't have courage enough, guts enough, to get out of a situation or to stop a situation that they wouldn't have started."
He wishes "no harm to anyone," Lewis says, and does not want to "bash Francisco." Then he proceeds to do just that: "This is not a person who needs to be encouraged or assisted in doing the most evil you could ever imagine in your whole life.
"This is a person who even in the solemnity of the courtroom cannot hide his evil side and his anger...I mean no harm. I mean no harm. But this is an evil man.
"This, I suggest to you, was going to happen...If Danny had left with Antonio, these fates were already in place. It wasn't Danny who started anything that night. It wasn't Danny who took this to a level of no return. If Danny had gone with Antonio, these events would still have happened, probably just the way they happened.
"His influence was minimal. These forces were set in motion. You had the personality and the evil of Francisco. You had Sammy Quintana, who was willing to hold her by the hair. You have Frank, who said, 'Let's kill her--she knows where we are.'
"You want to list them one, two, three, four--I'm not so sure that you wouldn't put Sam Quintana up there right below Pancho."
Lewis is at the critical point of his defense, the bar Colorado juries have not crossed--and, he hopes, the one judges won't, either. "Do we kill a person who did not themselves kill this little girl? Or should the death penalty be reserved for those worse cases, for the worse people, for those by whose hand the death of sweet, innocent people was caused?"
Turning to Danny, Lewis winds up by saying, "I am proud of the statement you made to the Court. I have no words that eloquent."
The boy Danny Martinez had good qualities. The man Danny has demonstrated that he is capable of the atrocities that happened to that child."
Randall responds to Lewis's portrayal of the defendant with anger. "The man Danny Martinez has demonstrated that although he is 25 years old with a GED, he chooses to possess more than 30 grams of crack cocaine, threaten police officers, murder, rape, torture a fourteen-year-old girl.
"This is not about sex. He had a girlfriend. She was in the house when Brandy was brought in. This is about his desire to torture and brutalize a human being."
Danny could have left that night, Randall points out. But he didn't. "It is Danny who was orchestrating her death."
Randall attacks the NAACP statistics. "We don't know the facts of the cases. For someone who's standing right next to a person that's being stabbed, and orchestrated, and participated in, and took place in everything leading up to the death, intended to her to die, can very well be considered a triggerman.
"But what those statistics do tell us is that there are some cases in which it is absolutely appropriate for even a non-triggerman to be sentenced to die, and Colorado is now facing one, right here and right now.
"How many forks in the road did he come to? There's not one fork in the road. There is not one great fork in the road that created this case. This defendant was thrown lifeline after lifeline after lifeline, choice after choice after choice, chance after chance after chance, and he always chose the wrong one.
"Why? That's what he wants to do.
"He comes out of that neighborhood as the evil murderer that he is, and other people do not. Why? Because he's different. Because he's capable of what he did to Brandy, and the others are not.
"There is only one punishment appropriate for the horror of this crime. It must stop. It must stop. He's been given enough chances. No more.
"Brandy's now dead. Danny Martinez must be sentenced to death."
May 7, 1999
When the lawyers in the Riggan case finished their closing arguments, the presiding judge, Frank Plaut, surprised those in attendance by announcing that the panel's decision would be ready the next morning.
After a week of deliberation, it is clear that the panel in Danny Martinez's case did not have nearly as easy a time making their decision. But finally, the word comes down that the judges are ready to announce their verdict.
The courtroom quickly fills.
Angela Metzger enters with her family. She doesn't think Danny will get the death penalty, but she will not be disappointed. Either way, his life has already been forfeited.
There is no winning here. Apparently not even any lessons learned. Just a few weeks ago, she noticed a small newspaper article--only a few paragraphs, really--about a fourteen-year-old girl who had been picked up on Federal Boulevard and raped by three men. Unlike Brandy, though, this girl was released several hours later. Hasn't anybody been listening?
If Angela feels anything about this moment, it is her heart going out to the woman across the aisle. She'd been sickened by the way the defense attorneys had attacked Danny's mother. Theresa wasn't perfect. But her son was a grown man. He'd made his own choices that night.
Twenty feet away, Theresa Swinton tries to control her own fear as well as that of her daughter, who is already in tears. Theresa's mouth is set, and she holds her eyes open wide to keep from crying herself.
She has prayed all night. Please, don't let them kill my son. But she isn't asking for any miracles. Danny should spend the rest of his life in prison for what he did. That, she believes, looking at the back of her son's head, is justice.
Before the verdict was announced after Danny's trial three months before, she told her family and Danny's supporters that she didn't want any outbursts--however the verdict came down--out of respect for Brandy's family. She has repeated that request, but this time Judge Anderson makes it official for both sides.
When the panel enters, Anderson instructs the audience, attorneys and defendant to remain standing. He thanks the Martinez and DuVall families for preserving the decorum of his courtroom throughout the proceedings.
He recognizes that emotions are high, however, and so takes the unusual step of saying that he won't tolerate any "outbursts, cursing, clapping, cheers or obscene gestures" at the announcement of the verdict. "If any person here feels they are inclined to lose control or have any doubts about their ability to remain courageous, silent and responsible in this kind of proceeding, I ask you to leave now, while we're still standing."
Anderson peers around the courtroom. When no one leaves, he says, "Those people of courage, respect and civility are welcome to sit with me at this time."
The moment of truth has come. Danny sits with his elbows on the table and hands templed in front of his face. Hands on both sides of the aisle reach for those of a neighbor. Heads bow.
Anderson clears his throat and announces, "We cannot reach a unanimous verdict." It takes a moment to sink in. To send someone to their execution, the verdict must be unanimous. The tension leaves the courtroom like water running down a drain.
A moment later, Danny's family learns how thin a thread his life hung by. The judges had split. Coughlin against the death penalty; Fasing and Anderson in favor.
"Lacking unanimity, the only lawful penalty is a sentence to life imprisonment...for Daniel Nieto Martinez Jr."
With that, Danny stands. He is handcuffed, then led away through a side door. He does not look back.
The death-penalty bar had been set higher than Danny Martinez. The question now is whether it will fall on the head of his best friend, Francisco.
Next week: The death-penalty hearing of Francisco "Pancho" Martinez and the conclusion of "Dealing with the Devil."
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