Behind the defense table, Swinton fought to control her fear. When called by the defense to testify, she'd taken the opportunity to apologize to Angela Metzger and the rest of Brandy's family. Now all her thoughts were on her firstborn. Please don't let them kill my son, she prayed.
The judges came into the courtroom, and Anderson warned the standing-room-only crowd that anyone who felt that he might not be able to control himself should leave. "Those people of courage, respect and civility," he said, "are welcome to sit with me at this time."
Michael Hogue
Robert Riggan was sentenced to life in prison for the kidnapping and murder of Anita Paley.
Details
Read more
Westword coverage of Colorado's death penalty in
Penalty ZoneRelated Content
More About
Then Anderson quickly announced, "We cannot reach a unanimous verdict." The words took a moment to sink in: Danny Martinez would not be sentenced to die.
Only later would those in the courtroom learn how close Martinez had come to death. Anderson and Fasing agreed that the prosecution had proved three of the five aggravators and that those aggravators outweighed the mitigators. In particular, they rejected the idea that Danny's participation in a murder "committed by another" was "relatively minor." Nor did they allow him to blame drugs and alcohol for his behavior. They did, however, sympathize with his "difficult and even tragic childhood" and allowed that as a mitigator.
Still, at the fourth step, Anderson and Fasing noted that Danny's history and background included a long series of decisions to engage in criminal conduct and that he evinced an attitude of reckless indifference to the possibilities of violence and confrontation between gangs. "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," they determined. And they agreed that it was constitutionally permissible for a complicitor, "under appropriate circumstances, to be executed in a capital case." And the circumstances in this case were appropriate, because Martinez's "participation was substantial and his intent murderous." For this reason, they would have imposed a sentence of death.
But Judge Coughlin had disagreed. In fact, he didn't even get as far as the fourth step. He accepted only one of the aggravators: that Danny Martinez had conspired with others to kill Brandy. In rejecting the aggravator that he'd "committed the offense in an especially heinous, cruel or depraved manner," Coughlin said he interpreted "offense" to mean only the act of stabbing Brandy to death.
Coughlin was also much more generous in accepting mitigators. Again interpreting "the offense" to mean only the stabbing, he agreed that Martinez was not the "principal in the offense" and that his participation was "relatively minor." He accepted the mitigators that Danny was drunk and had had a difficult childhood that influenced his actions. Those mitigators, he said, outweighed the single aggravator, and so there was no reason to proceed to the fourth step.
Although Coughlin had already eliminated any possibility that Martinez would be put to death, he went on to contradict Anderson and Fasing, asserting that the Colorado Supreme Court "clearly holds that the death penalty may not constitutionally be imposed on a defendant convicted on a complicity theory."
For the third time in as many attempts, a killer had avoided the death sentence. And even though judges were now in charge of the decision, once again the will of the majority had been overruled by a single vote.
Going into the trial, the prosecution team had concerns about Coughlin, a staunch Catholic who went to Mass daily. But they'd gone on the assumption that if Coughlin was philosophically opposed to the death penalty, he would have removed himself from the process.
Prosecutors had to make sure that was still true, but Coughlin's holdout certainly raised concerns that judges did not have to be "death qualified," as jurors had been.
Jeffco DA Thomas, echoing the words Denver DA Ritter uttered that same afternoon, said it was too early to dump the new statute. "We've just started the process," he said.
The district attorneys recognized that all three of these cases had issues that would have troubled juries, too. But in just a few days, Thomas's prosecution team would take a fourth case before a panel of judges, a case with no such issues.
If black came in different shades, as Randall had remarked, it didn't get any darker than Francisco "Pancho" Martinez Jr.
Hal Sargent took a last glance at his notes before looking up at the judges. It was May 19, 1999, just two weeks shy of the day two years before when Brandy DuVall's savaged body was found alongside Clear Creek. Two years of prosecuting members of the Deuce Seven Bloods gang for Brandy's rape and murder were nearly at an end.
The task had been monumental. Endless meetings with defense attorneys to make deals and get co-defendants to roll over and testify against the others. Innumerable hearings to quibble over legal technicalities. Three murder trials. Two death-penalty hearings, including this one, for Francisco Martinez Jr.
Francisco's defense team alone had filed more than 300 motions between his trial and the hearing. Most of the motions contested the constitutionality of the three-judge death-penalty panels, attacking the statute from every conceivable angle. Others seemed designed merely to take up time and resources, such as the motion that demanded to be informed of any "known side effects" of the drugs used for lethal injection and whether those drugs had been approved by the Food and Drug Administration. The defense had won perhaps half a dozen of its motions, although none that challenged the panel's authority or greatly affected the prosecution's strategy. Yet each issue had to be researched and answered.
