Murderers' Row

Until two years ago, Colorado juries weighed whether men deserved to die. Now judges decide their fate.

Under this new Colorado statute, the jurors would use a two-step process to determine their verdict. Step one would determine whether the prosecution had proved beyond a reasonable doubt that at least one aggravator existed. A murder might have occurred during the commission of another felony, such as rape or robbery, for example, or a murder might be "particularly heinous, cruel and depraved." The jury's vote had to be unanimous before an aggravator could be accepted; if the jury failed to approve at least one, there was no need to go to the next step.

Step two was to determine whether the defense had supplied enough evidence to suggest the existence of mitigators, such as: if the defendant was under the age of eighteen; if he was under unusual duress; if he was a principal with relatively minor participation -- although not so minor as to constitute a defense from prosecution -- in the offense committed by another. If the jury determined that there were mitigators, then the sentence was life in prison.

Following the Supreme Court's 1976 ruling, Colorado reinstated the death penalty. But in 1978, it was struck down again -- this time by the Colorado Supreme Court, which determined that the mitigating factors listed in the state statute were "too restrictive." The legislature remedied this in 1979 by adding the rather nebulous concept of "any other evidence which in the court's opinion bears on the question of mitigation." And lawmakers added seven more mitigators, including the influence of drugs or alcohol and a "good faith, although mistaken, belief by the defendant that circumstances existed which constituted a moral justification for the defendant's conduct."

In Cañon City, a prisoner is strapped down, then given a lethal injection.
Brett Amole
In Cañon City, a prisoner is strapped down, then given a lethal injection.
Frank Rodriguez is among the six prisoners waiting on Colorado's death row.
Frank Rodriguez is among the six prisoners waiting on Colorado's death row.


Read more Westword coverage of Colorado's death penalty in Penalty Zone

Lawmakers added another aggravator, too: if a defendant was a party to an agreement to kill another person. More significant, they also addressed prosecutors' concerns that aggravators were "canceled out" if the jury decided there were mitigators. The language of the statute was altered to require a death sentence if at least one aggravator had been proven -- unless the jury was convinced there were "sufficient" mitigators to warrant a sentence of life in prison. This added a third step to the process, one that called for "weighing" of the aggravators against the mitigators.

The death penalty was back, although no one was particularly happy with the new rules.

Prosecutors contended that the statutes made it more difficult to get a death-penalty verdict in Colorado than it would be in other states. A major concern was that Colorado jurors had to reach a unanimous verdict, while some other states only required a "super-majority" of nine or ten of twelve. If the defense convinced just one juror to vote against the death penalty, Colorado prosecutors complained, the will of the other eleven wouldn't matter.

In 1984, the legislature amended the death-penalty statute once again. The prosecution now had to prove the existence of at least one aggravating factor "beyond a reasonable doubt," the same standard prosecutors had to meet in a trial. The new language, however, also said that the defense did not have to prove its mitigating factors "beyond a reasonable doubt," nor did the jury decision have to be unanimous in deciding they existed. In fact, the defense had no burden of proof beyond what could be called a "burden of persuasion," which would leave it up to each juror to decide how much weight to give the defense case.

The most important change to the statute, however, was a rather innocuous-sounding addition: that based on a "consideration" of the other steps, a jury would decide "whether the defendant should be sentenced to death or life in prison" -- essentially, whether he "deserved" to die. In the years that followed, this was interpreted by trial courts as adding a fourth step, making Colorado's death-penalty statute a hybrid of other states' statutes. The states were divided between "weighing states" -- in which jurors compared aggravators to mitigators and determined whether the former "outweighed" the latter -- and "non-weighing states." In weighing states, if aggravators outweighed mitigators, the sentence was death. In a non-weighing state, jurors heard evidence of both aggravators and mitigators. But they were required only to decide whether there was at least an aggravator before looking at the case as a whole and deciding the penalty. Only Utah and now Colorado combined the two versions.

Colorado's fourth step would spare many murderers who likely would have landed on death row in a "weighing" state.

Late in the afternoon of November 14, 1984, Lorraine Martelli, a 54-year-old bookkeeper, left work. A devout Catholic who'd never married, she lived with her elderly mother in the old Italian neighborhood of north Denver.

As Martelli walked to her car, she was spotted by brothers Frank and Chris Rodriguez and David Martinez and his girlfriend, Patricia Thomas, who were looking for someone to rob. Too late, Martelli spotted the Rodriguez brothers approaching. The two men grabbed her and forced her into her car. Pushing her to the middle of the front seat, Frank got in on one side and Chris on the other. Martelli tried to resist, honking the horn, but the pair drove down an alley and swung around to pick up Martinez and Thomas.

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