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Judgment Day

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

Nor would the judges accept the aggravator that Danny intentionally killed Brandy "in the course of, or furtherance of, or immediate flight therefrom" committing a felony. Once again--although the judges noted the prosecution had proved that Danny committed first-degree assault, first-degree sexual assault and sexual assault on a child by use of force--they balked at the word "intentionally."

The two judges rejected most of the mitigators offered by the defense, including its argument that Danny's participation in the murder "committed by another" was "relatively minor." Nor could Danny blame his conduct on the influence of drugs and alcohol; no one made him drink that night, they said.

Under the catchall "any other evidence...that bears on the question of mitigation," the judges had sympathized that "the defendant endured a difficult and even tragic childhood without the support of a traditional family unit or paternal bonding. Almost from birth, he and his siblings had to adjust to changing environments that were largely unstable, underprivileged, non-nurturing, emotionally injurious and even dangerous." They had taken his childhood into account during their deliberations, along with his apology to the family of Brandy DuVall.

Taking the third step, the judges concluded that the aggravators outweighed the mitigators. This made Danny eligible to be considered for the death penalty.

At this fourth step, they noted that Danny's history and background included a long series of decisions to engage in criminal conduct. "The defendant and his brother, Antonio Martinez, established the Deuce-Seven Crenshaw Mafia Gangsters, a subset of the Bloods, in the middle of Crips gang territory," they noted--an act that "evinced an attitude of reckless indifference to the possibilities of violence and confrontation between gangs...The defendant grew up in a gang subculture of violence, and not only adopted its value system, but promoted and encouraged others to do the same."

Danny had his opportunities to avoid the path he was on, they determined. "Even on the night in question, defendant had a chance to leave his uncle's house with his brother, Antonio, but he chose instead to stay with his gang."

The judges recalled that in his statement to Brandy's family, Danny said he couldn't explain what happened in the early-morning hours of May 31, 1997. "But this is not a case about simply making a few wrong turns in life. Many people are raised in difficult circumstances similar to those which confronted the defendant in his formative years. These circumstances do not inevitably lead to a life of crime as chosen by the defendant."

Brandy was only fourteen and petite, the judges wrote, "unable to resist the assault and preparations for her death in any significant way. Her torture was systematic, complete, dehumanizing. The criminal acts committed against her were abhorrent, vicious and merciless."

The judges had not bought into the lawyers' attempts to deflect scrutiny of Danny's culpability by highlighting the criminal actions of his friend, Francisco. "His individual participation in her murder is not rendered marginal merely because he did not hold the murder weapon as it penetrated the victim's body...The fact that the defendant did not administer the lethal wounds is a circumstance which pales when measured against the series of brutal acts leading up to the killing of Brandy DuVall."

In fact, the judges agreed that it was constitutionally permissible for a complicitor "under appropriate circumstances" to be executed in a capital case. Such were the circumstances here, where "his participation was substantial and his intent was murderous."

"Finally, we acknowledge the enormous loss and tragedy suffered by the family of Brandaline DuVall. This panel is without words to adequately acknowledge the personal suffering occasioned by the senseless death of this fourteen-year-old girl. The only adequate response in light of the extreme circumstances of this case is a measure of justice in fair and equivalent proportion to the actions of the defendant.

"For this reason, District Court judges Leland Anderson and Timothy Fasing would impose a sentence of death upon the defendant."

But Judge John Coughlin of Denver did not agree. He'd accepted only one of the prosecution's aggravators: that Danny conspired with others to kill Brandy. Even here, Coughlin was troubled by the fact that the jury did not find Danny guilty of conspiracy to commit murder, a charge that was never brought by the prosecution. He decided, however, that if it could be assumed that the panel had the constitutional authority to determine this on its own, then he could accept it.

He rejected the other four aggravators, however. Like the other two judges, Coughlin wouldn't go for any of the aggravators that stated the defendant had "intentionally" killed a witness or kidnap victim. But he also couldn't decide that "the defendant committed the offense in an especially heinous, cruel, or depraved manner."

Coughlin acknowledged that this described what had happened to Brandy. However, instead of interpreting "offense" as the actual charge of first-degree murder after deliberation, as his two colleagues had, he decided it meant the act of stabbing Brandy. And, contradicting his colleagues, he asserted that the Colorado Supreme Court "clearly holds that the death penalty may not constitutionally be imposed on a defendant convicted on a complicity theory."

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