Judgment Day

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

These include probation officers, halfway-house counselors and cops. They often are reading records written by others, provoking numerous objections from Neuwirth about the hearsay nature of such testimony. It doesn't allow Francisco, through his lawyers, his constitutional right to confront his accusers directly through cross-examination.

The prosecutors note that the rules of evidence don't apply at sentencing hearings. That means a certain amount of hearsay is allowed.

The objections are overruled. Neuwirth's frequent return to the same subject finally irritates Villano, who testily notes that he'd already ruled on the appearance of these witnesses prior to the hearing. "Let's get on with it," he says.

And they do. Among the day's witnesses:
Theodore LeDoux, a probation officer with Denver Juvenile Court, testifies that Francisco seemed to have a good relationship with his mother, Linda (combating the expected defense allegations that she was a bad mom), and that she tried to get her son out of the neighborhood after Crips shot at him in 1988.

Neuwirth gets LeDoux to acknowledge that Francisco had been called "Pancho" since he was a little boy and that it was not a gang moniker. He also gets him to admit that when Francisco was in detention, his mother had her telephone service blocked so he couldn't call home.

John Malloy, a former youth corrections caseworker for the state Department of Corrections, testifies that when Francisco was in detention in 1989 after his part in a gang shooting by Antonio Martinez, the young man had stated that he "likes to hurt people." Francisco "believed in gang ideation," he adds.

Malloy is uncooperative when Kaplan, on cross-examination, tries to point out that Francisco had "done well" in the structured environment of the detention facility. This would go to the defense argument that Francisco would not be a problem if allowed to live in prison. But Malloy will concede only that the first three months were "the honeymoon period," after which the defendant "slacked off."

Detective Joseph Catalina of the Denver Police Department relates how Francisco was the prime suspect in the March 23, 1993, shooting of two fellow gang members, Sam Garcia and Gary Rodriguez. The shooting had been witnessed by David Warren, a co-defendant in the DuVall case.

Garcia had positively identified Francisco from a photo lineup, Catalina says, recalling Garcia's comment: "I'm almost dead, and that's the guy who tried to kill me. Yeah, Pancho. Francisco Martinez." But the men had later recanted, and Francisco was never prosecuted.

May 11, 1999
The sullen young Hispanic man in the orange jail jumpsuit shakes his head. "I'm not going to talk. I want to go back to my cell."

David Warren has been called to talk about the 1993 shooting discussed the day before. Although he'd testified against Frank Vigil, Danny and Francisco at their trials, he's now refusing to say any more.

Sargent gets him to admit that he's not happy. He thought his deal was that he got to do his time out of state--a matter the prosecutor is still trying to arrange--and he wasn't pleased when Villano sentenced him to the maximum, 32 years, in March.

But his current stance has more to do with fear than petulance. It was one thing to be a "snitch" at a trial; testifying against another prisoner at a death-penalty hearing takes matters to another level.

In their seats, Brandy's relatives groan. They recall that just two months ago, this man was on his hands and knees, crying and begging their forgiveness. Telling Villano all the things he'd tried to do to make up for his crime (which had included biting Brandy's breast while she stood in terror, handcuffed and hooded).

Now Warren won't budge, even when Villano threatens him with contempt of court. Finally, he's allowed to step down from the witness stand and is marched back to his cell.

The prosecution calls a more agreeable witness, Stacy Pike, a therapist who treated Francisco while he was residing in a halfway house after getting out of prison in 1995. She says that Francisco had been sent to her needing therapy for "alcohol abuse and anger management." Pike has worked with many violent offenders in her two decades as a therapist, she says, but Francisco was in a league by himself.

Early in the group sessions, she says, the participants were working on issues regarding their belief systems. They were asked questions that required yes or no answers. One question was: Do you believe you will be famous?

Francisco answered yes. When she asked him what was going to make him famous, Pike testifies, "He said he was going to blow away an entire gang."

With that in mind, Pike listened even more closely to Francisco's responses at the next session. This time the participants were asked about their favorite hobby. "He said his favorite hobby was shooting people," Pike recalls. "I hadn't heard that one before, so I asked him what it was about shooting people that he liked. He said that after he shoots them, he likes to watch their bodies twitch." Pike asked Francisco if he would shoot her. His response: "Oh, no, Miss Pike. I like you."

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