Judgment Day

As judges ponder the fates of Brandy DuVall's murderers, they must measure different shades of black.

The judges didn't have to rely solely on Sammy Quintana's testimony to know who'd really stabbed Brandy, he says. Francisco himself, when questioned by police, had admitted he was in the front passenger seat when the gang left Uncle Joe's house (although he denied that Brandy was with them). The wounds to Brandy's stomach and sides had been caused by the person sitting in that seat.

When the judges reach step three, Sargent says, they will find that whatever mitigators they allow "would pale in comparison to the aggravators." And when they turn to step four, he says, there can be only one sentence: "for the ultimate crime, the ultimate punishment."

Defense attorney Kaplan waits for Sargent to sit before he goes slowly to the podium, as if lost in thought. He is tired. One day during a break in the hearing, he had begged a different judge to reschedule another trial--not because Kaplan didn't have that case together, but because he would be too emotionally drained by this one to put any heart into it, he said.

"Who should live and who should die is not an easy question for a civilized society," Kaplan now begins. And the judges will have to make their decision not just according to "legal concepts, but moral concepts."

They should begin with "the presumption of life...the value of life. The life of Brandy DuVall," he says, turning to the girl's family, and then pointing to his client, "and the life of Francisco Martinez."

Kaplan revives the argument that all of the evidence pointing to Francisco as the man who inflicted Brandy's fatal wounds came from Sammy Quintana. Recalling Quintana's involvement in the killing of Brandy and Venus Montoya, Kaplan asks, "Is that the type of person whose testimony you can rely on in order to kill Francisco Martinez?"

The attorney also returns to Ridley's opening statement that the judges couldn't know if the jury convicted Francisco as the principal or the complicitor. In which case, he says, "it would be impermissible to sentence Francisco Martinez to death on a theory of complicity."

Kaplan attacks the quality of the prosecution's evidence regarding its aggravators, particularly those accusing Francisco of crimes of which he was never convicted. Much of it was hearsay, he argues, or blown out of proportion.

"And what of Francisco Martinez, the man before this court? What of his life?" Kaplan asks, then delves into his client's past.

The judges can't just "sweep it off the table like yesterday's news. It was not just like every other hard-luck story." Some of what Francisco went through would have been "okay if everything else was okay. But it was not okay when you have virtually nothing else going for you."

Kaplan ends his remarks by recalling the Columbine High School shootings a month before. A civilized society, he says, needs to ask questions about what events precede "something this horrible...whether Brandy DuVall or Columbine," and what might have been done to prevent either one.

His voice cracking from the strain, Kaplan says that this is the first time he's had to argue about whether a client should live or die, "and I'm not quite sure how to sit down. Tomorrow will be too late." He asks the judges to try to understand the forces that created Francisco--"and hopefully, to understand is to forgive."

When all the arguments are done, just one question remains to be answered. In this courtroom, at least. Unlike Danny's death-penalty panel, which left everyone guessing when the decision would be made, Judge Villano says this panel will have its answer in eight days--on May 27, 1999.

Just four days shy of the two-year anniversary of Brandy DuVall's murder.

May 27, 1999
"I didn't want to come, but Danny asked me to. I told him I don't want to show any disrespect for Angela. But he said, 'Linda needs you.'"

Theresa Swinton, Danny Martinez's mother, sits outside the courtroom where, in a few minutes, she'll learn whether the young man she has known since boyhood will be sent to the state executioner. Outside, low gray clouds obscure the tops of the foothills just west of the courthouse--fitting weather for the occasion, she notes.

"I told him I'd come but I didn't want to go in the courtroom," she says of her conversation last night with Danny. "I no more want to hear them hand down the death penalty for Pancho than I did for my own son. But he said, 'You have to go in the courtroom and be there for her.'"

Theresa sighs. In the few weeks since Danny had escaped the death penalty by a single vote, she'd felt good. Her prayers had been answered: Her son would live.

But as Pancho's hearing approached, she realized she'd been kidding herself if she thought she could get on with her life. It can only be over if he receives a life sentence without the possibility of parole. That would be justice for what her son and his best friend did to that little girl. "They should have to get up every morning and work hard until night," she says, perhaps building schools or playgrounds.

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