Judgment Day

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

Jefferson County judge Michael Villano, who as the presiding judge at Francisco's trial sits on this panel, had been right on target at the March sentencing of government witness Sammy "Zig Zag" Quintana Jr., when he noted that this crime had forever altered the lives of many people. Not just Brandy and her family, or even the young men and their families. The judge also included the attorneys and court personnel, including himself, and particularly the jurors, who had been yanked out of their unsuspecting, everyday lives and forced to listen to tales of atrocities that brought many of them to tears.

To do what she is doing now required a lot of soul-searching for Bakke. As a young prosecutor in the division that deals with crimes against children, she'd convinced herself that she could ask for the death penalty without batting an eyelash. But that was before she'd been assigned to her first capital murder case. This case.

Suddenly, she'd realized she didn't know where she stood on the death penalty. In the nearly two years she'd worked on the case, Bakke had gone back and forth; she hadn't really resolved the issue until shortly before Danny's sentencing. But as she assembled the so-called aggravators--those particularly cruel or unusual aspects of the murder that the government uses to spell out the need for a lethal injection--with her two colleagues, she came to believe that the punishment fit the crime.

By the time she wrote the opening for Danny's sentencing, Bakke saw little difference between Francisco and Danny. Like everyone else, she initially had been caught up in the "co-conspirator" issue: Was Danny as culpable--and therefore as deserving of death--as Francisco, the man who'd actually inflicted the fatal wounds?

But no more. Ultimately, Bakke realized that whatever he'd derived from the crime, Danny's participation was simply different from Pancho's. The words came from her colleague Mark Randall, spoken during a meeting to coordinate her opening with his closing, but she agreed that comparing Danny to Francisco was like looking at "different shades of black."

Still, she'd told friends, it gave her a strange feeling when she wrote down the last line of her opening: "The People respectfully request that you sentence Danny Martinez Jr. to death." And though she'd felt comfortable delivering that line, there was no joy in the asking.

The three deputy DAs--Bakke, Randall and Hal Sargent--were worn out from the workload, particularly keeping up with the several hundred motions filed by Francisco's lawyers, more than ten times the number filed by Danny's. Most of the motions contested the constitutionality of the three-judge panels, attacking from every conceivable angle the 1995 Colorado statute that had established them. Others seemed frivolous, such as one motion concerned with any "known side effects" of the drugs used for lethal injection and whether those drugs had been approved by the Food and Drug Administration.

The defense won perhaps half a dozen of its motions, although none that challenged the panel's authority or greatly affected the prosecution's strategy. Yet each issue had to be researched and answered. The prosecution's workdays had begun at six in the morning and continued until ten at night. There was never any downtime; another hearing or trial or sentencing always loomed just a week or two away. None of them had taken a real vacation in nearly two years. Even weekends were spent working.

The emotional demands were just as wearing. The lineup of three trials and many other hearings brought the prosecutors closer to the victim's family than they normally would have been. It was hard trying to keep the family's spirits up while working to stay focused.

The prosecutors had all had dreams and nightmares about the case. The crime. The people. The testimony. All of it looping through their minds on automatic rewind.

Doing what needed to be done had grown progressively harder. Just looking at the photographs of Brandy's mangled body brought back all the horrors.

The case had even changed the way some people looked at them. Bakke noticed that defense lawyers she'd once been friendly with were going out of their way to avoid talking to her. She and her partners had crossed some line from adversary to enemy.

They all have their own devils to deal with.
But now Bakke puts them aside as she tells the judges that the state will be trying to prove, beyond a reasonable doubt, five aggravators. They are the same five it attempted to prove for Danny: that Francisco caused the death of Brandy "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 Francisco intentionally killed a kidnapped person; that Francisco was party to an agreement to kill Brandy; that Francisco killed Brandy to avoid lawful arrest or prosecution; and that the murder of Brandy was "especially heinous, cruel or depraved."

Then she outlines the atrocities the state will lay specifically at Francisco's feet. It was Pancho who removed Brandy's clothes, picked her up and carried her to the back bedroom after she was "delivered" to 3165 Hawthorne. It was Pancho who sexually assaulted her with a beer bottle. It was Pancho who tried to get Danny's uncle to participate. "Want some head, Uncle Joe?" Bakke mimics the man sitting twelve feet to her right.

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