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Judge and Jury

With several controversial cases coming up, Colorado's death-penalty decision moves to a three-judge panel.

On the dais above a silent Jefferson County courtroom, Judge Frank Plaut cleared his throat. He was well aware that he was about to make Colorado history by handing down the first sentence from a three-judge panel in a death-penalty case. The other judges sat on either side, gazing solemnly at the packed spectator gallery.

The defendant, Robert Lee Riggan Jr., a petty criminal for most of his life, sat at the defense table, staring straight ahead at the judges. Pale, scarred, his hair shorn to a stubble, he'd refused to attend most of his death-penalty hearing, calling Plaut "a motherfucking egomaniac" and telling Judge R. Brooke Jackson, who'd asked why he didn't want to attend, "I've got fifty pounds of shit on my back, and I don't want no part of this garbage. Go ahead, kill me and get it over with...I did not kill that girl, but there's nothin' I can do about it."

The "girl" was 21-year-old Anita Paley, mother of two young daughters, a crack addict who'd turned to prostitution to feed her habit. On May 16, 1997, Riggan had been spotted dragging Paley up a mountain trail. Suffering from a severely fractured skull and brain damage, she'd died the next day. An emergency-room surgeon had also found a deep, three-inch-long cut inside Paley's vagina that had severed a major blood vessel; the physician had testified at Riggan's October 1998 trial that the cut had been made deliberately with a sharp instrument.

At that trial, Riggan had claimed that Paley had jumped from his van, fracturing her skull in the process. Although he had no explanation for the vaginal wound, his lawyers -- Bob Hartley and Nathan Chambers -- offered the theory that Paley must have been carrying a small container for drugs or money inside her vagina that broke when she struck the ground. The jurors didn't buy that, and they'd convicted Riggan. Still, the defense had won an important point when the jurors hung 8-3 (a twelfth juror had been released because of illness) on the charge of first-degree murder after deliberation and instead found him guilty of first-degree felony murder.

That verdict came almost four years after the Colorado Legislature had changed the death-penalty statute, taking the decision of whether a convicted murderer should be put to death away from jurors and giving it to a panel of judges. Now Riggan was about to find out if those judges would do what Colorado juries had consistently refused to do: sentence a man to die for felony murder.

Until his appointment to the Jeffco bench in September 1996, the 67-year-old Plaut had spent most of his legal career as a civil lawyer. Before the Riggan trial, he had never presided over a first-degree murder case. When the Riggan trial ended with a felony-murder conviction, a computer had selected Judge Jack F. Smith of Arapahoe County and Judge R. Brooke Jackson of Jefferson County at random to sit on the death-penalty panel with Plaut. Smith, age sixty, had been a judge since 1987 and had presided over murder trials, but never a death-penalty case. Jackson, 51, who'd also spent most of his career in civil law, had been on the bench only four months.

In the days before Riggan's death-penalty hearing, the legal community had debated the new system. Defense lawyers, who'd fought the switch back in 1995, predicted a population explosion on death row, currently occupied by Frank Rodriguez, Robert Harlan and Nathan Dunlap. Gary Davis had been executed in October 1997. Ronald Lee White, 43, a self-professed serial killer, had been moved off death row because the Pueblo County district attorney had recently received a box of investigative files related to White's case from the sheriff's office that had never been turned over to the DA, much less White's attorneys. Although the documents appeared to be duplicates of materials already presented, the DA had decided to go ahead and stipulate that White should get a new sentencing hearing; the date for that was still pending results of tests done on White for hepatitis C, a potentially fatal disease.

But while death row had few residents in April 1999, six death-penalty hearings in addition to Riggan's were coming up. Colorado district attorneys also had announced that they'd seek the death penalty in four as-yet-untried murder cases. With judges now deciding whether defendants should die, defense attorneys were bracing for the worst.

"In Colorado, there have usually been one or two death-penalty cases pending anywhere in the state," David Lane, an outspoken critic of the death penalty who'd represented White in civil suits filed against prison guards, told a reporter. "Now there are a dozen. This never happened before. Murders here haven't all of a sudden gotten worse. Prosecutors know they're going to start filling up death row and are champing at the bit trying to do it. Judges are far quicker on the trigger."

The Riggan case had "serious issues of guilt or innocence," Lane added. And compared to other murders, Paley's death didn't rank "among the 1 or 2 percent of heinous murders the death penalty is designed for."

David Kaplan, a former public defender, declared that "the floodgates have opened up." Five years earlier, while representing a man accused of helping execute two men and wounding another, Kaplan had helped persuade the Colorado Supreme Court that a new death-penalty statute designed to increase the number of death-penalty verdicts was unconstitutional and a violation of his client's rights. The legislature had quickly rectified the problem, but for a few months, the state was effectively without a death-penalty statute. Kaplan had later testified before the legislature against giving death-sentence decisions to judges. In another month, he'd be standing before another death-penalty panel, trying to save the life of convicted killer Francisco "Pancho" Martinez.

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