Judgment Day

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

The judge then turned to step two, where he was much more generous allowing the defense mitigators. Because he again interpreted "offense" as the inflicting of the fatal wounds, he determined that Danny wasn't "a principal in the offense" and that his participation was relatively minor. He also accepted as mitigation witness testimony that Danny was drunk on that horrible night.

"Danny Martinez would be a threat to society if he was released from prison," the judge determined. But he would not be a threat to society if put in prison for the rest of his life.

Coughlin decided the mitigators outweighed the single aggravator he'd allowed. That meant he wouldn't even have to proceed to step four--the question of whether Danny deserved the death penalty. And since a death-penalty sentence must be unanimous, Danny Martinez's life was spared.

Once again, a defendant had avoided a death sentence, this time by a minority voice--an occurrence that, when twelve-member juries were in charge of the decision, so frustrated prosecutors that they'd pushed to give it to judges instead.

The legislature had passed that law in 1995; the first death-penalty hearing before judges was finally convened this April, for the sentencing of Robert Riggan. In the intervening years, defense attorneys had complained that the three-judge panels would essentially rubber-stamp death-penalty requests. But so far, the panels were three-for-three in sentencing defendants to life in prison without parole.

On the same day Danny's life was spared by Coughlin's vote, another panel in Denver unanimously concluded that they couldn't sentence Jacques Richardson to death. Richardson, a thirty-year-old serial rapist, had been convicted for the murder of Capitol Hill resident Janey Benedict; she had been strangled by the ropes that Richardson had used to hog-tie her.

As with Riggan, the Richardson panel noted that the jury had been unable to conclude that the defendant "intentionally" killed his victim. In their opinion, the judges wrote that while Richardson was "a morally culpable, despicable and dangerous human being...the statutory scheme is one designed to distinguish the most horrendous first-degree murders from the rest.

"That statutory scheme has, to date, produced no death penalty except for premeditated, intentional murder."

So far, the panels were bucking the notion that judges would easily hand down one death sentence after another. But with the two-to-one vote on Danny Martinez, the margin was getting slimmer. And Francisco Martinez was up next.

You don't know whether the jury convicted Francisco Martinez of first-degree murder as a complicitor or the principle.

"Because of a lack of evidence in this case, you," defense attorney Patrick Ridley says, pointing at the judges, "don't know if it was Francisco Martinez," he says, now pointing at his client, "who stabbed Brandy DuVall to death."

Ridley must counter whatever impact Bakke's opening had on the panel. It may not have been much: Dramatic opening statements are for jurors who can be counted on to let their emotions govern them as much as the law. Not judges.

Judges are supposed to be able to put aside not only improper legal arguments, but their own feelings while making decisions following the stone-cold letter of the law. They aren't supposed to be swayed by impassioned pleas that have no legal merit. They may, in fact, become irritated by over-exuberant lawyering, and there are few things an attorney fears more than an irritated judge.

Then again, and despite all evidence to the contrary, judges are human. So both Bakke and Ridley, a tall, Ivy League-looking sort, have seen fit to add a dash of melodrama to their statements.

Ridley, however, begins by concentrating on two arguments. The first is that Francisco was just one of seven gang members who all had a hand in Brandy's death and that to single him out for the hardest punishment would be "morally and legally" unfair.

And second, that the prosecution wasn't sure enough of its theory that Francisco, not Sammy Quintana, inflicted the fatal wounds to leave out the "complicitor language" when they asked the jury to convict Francisco of first-degree murder after deliberation. Such language, he notes, allowed the jury to hand down a conviction without having to decide that Francisco did the stabbing.

Before opening statements, deputy DA Sargent had successfully countered a similar argument by legal expert Dean Neuwirth, who demanded that the judges stop the proceedings and sentence Francisco to life in prison. It had always been the government theory, the prosecutor said, "that Francisco Martinez is the one who stabbed her to death," and that was the way the case was presented to the jurors.

The judge had agreed. But now, Ridley raises the argument again. All through this case, the defense has refused to give an inch.

It's been a long haul for the young defense attorneys, too. While Ridley and his colleagues, Dave Kaplan and Neuwirth, have had only one trial and now this sentencing in the DuVall homicide, they've been up against the considerably larger resources of the Jefferson County District Attorney's Office. In fact, Neuwirth was brought in to combat the presence of an attorney from the Colorado Attorney General's Office as well as the Jeffco DA's appellate expert, Donna Reed, at the prosecution table.

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