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Judgment Day

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

It was Pancho who tried to have anal sex with Brandy. And when the girl complained, her anus was sliced open in the bathroom while she was alone in there with Danny and Pancho. Then it was Pancho who took her back to the bedroom and shoved a broom handle into her bleeding rectum.

"He put it in her hard," Bakke says, "and Brandy screamed." When Brandy lost control of her bowels, it was Pancho who declared--and here Bakke nearly yells--"'You shit on my homeboy's shoes, bitch,' and kicked her in the chest."

The little cries, sniffles and sounds of misery in the background at all these legal proceedings have begun again. Brandy's mother, Angela Metzger, sobs, her shoulders shaking, as Bakke recounts how Pancho kicked her daughter in the head when she made the mistake of admitting that she knew where she was. And still the prosecutor goes on.

It was Pancho who, tired of Brandy's pleas for mercy, began to stab her on the drive into the mountains. Pancho who tried to strangle her into silence. And, at last, Pancho who finished the job by stabbing her repeatedly in the neck while Sammy Quintana held her down.

Bakke quickly outlines the testimony that Villano and the other judges on the panel--Robert Hyatt of Denver and Deanna Hickman of Arapahoe County)--will hear during the prosecution's case. The victim-impact statements. Pancho's other crimes, including the beating of a former girlfriend just three days before Brandy's death. His continued penchant for violence even while incarcerated. And his harassment of Brandy's family during the trial.

If there is no joy in her voice when Bakke at last comes to her final line, there is also no hesitation. "The People respectfully ask that you sentence Francisco Martinez Jr. to death."

The first time Bakke made that request, two of the three judges agreed. Because one did not, Danny Martinez Jr. was spared the death penalty. Danny's fate was announced May 8, two days before Francisco's hearing was set to begin.

Jefferson County District Court Judge Leland Anderson, who had presided over Danny's trial, and Arapahoe County District Court Judge Timothy Fasing had voted in favor of the death sentence. The two jurists agreed that the prosecutors had proved three of the five "aggravators" they had proposed.

One was that Danny was a party to an agreement to kill another person. Indeed, they said, he "conducted discussions in the presence of Brandy DuVall as to who should kill her and how she should be killed."

They also concluded that Brandy had been murdered "for the purpose of avoiding or preventing lawful arrest or prosecution...He was so fearful of arrest and prosecution," the judges wrote, "that at one time he suggested that everyone should be 'taken out,' including even members of his own gang...The motivation and purpose of these discussions was to eliminate Brandaline DuVall, the primary witness to the defendant's criminal behavior and that of his cohorts."

And they determined that Danny could be held responsible for killing Brandy "in an especially heinous, cruel or depraved manner." First, they concluded that the legal language of that aggravator "does not expressly require that the defendant himself perform the lethal physical acts resulting in the death of another person...What is required is proof that the defendant 'committed the offense'," the offense being murder in the first degree after deliberation.

They noted that after Brandy's anus had been cut open "the defendant inserted his penis inside her" and later "laughed when Francisco Martinez rammed a broom handle up her rectum...The child was screaming and begging to be allowed to go home. The defendant and other members of the Deuce-Seven disregarded her cries...Though the defendant's conduct cannot be measured by the acts of Francisco Martinez, the defendant did not intercede in any way to prevent or object to this brutal assault by Francisco Martinez, his lifelong friend and gang associate."

The judges further concluded that "the defendant handcuffed the naked, bleeding child and threw her into a corner with a hood over her head. Trapped in darkness, the child was forced to listen as the defendant conducted and directed the gang's discussions in her presence as to the manner in which she should be executed."

Then, during the ride into the mountains, "the defendant restrained the child as Francisco Martinez leaned from the front passenger seat of the vehicle and stabbed her repeatedly in the midsection." After that, Danny did not "interfere, object or attempt to dissuade" his friend from stabbing Brandy 28 times and heaving her body down the embankment onto the rocks below.

"The defendant never suggested that the child's life should be spared, or attempted in any way to provide physical or emotional support to the child in the last hours of her life."

The two judges found, however, that the state had not proved beyond a reasonable doubt that Danny had intentionally killed a kidnap victim. Their hangup was the word "intentionally." Although they agreed that Brandy had been kidnapped--she was taken against her will from Uncle Joe's to her execution--they concurred that Danny could not have "intended" to kill her because he did not inflict the fatal wounds.

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