By Joel Warner
By Michael Roberts
By Alan Prendergast
By Michael Roberts
By Michael Roberts
By Amber Taufen
By Patricia Calhoun
By William Breathes
This crime, they continued, was "further distinguishable from those crimes where the defendant engaged in purely gratuitous violence for the purpose of accomplishing the murder, and therefore not in the same category as Davis, Woldt, Martinez and Neal. "Although Page's sexual assault at knifepoint was "barbarous and brutal, the killing itself was not characterized by the demonical savagery of the latter cases....Though he is undoubtedly a violent man, his violence in this case was born of opportunism, rage and fear rather than blood-lust and sadism. This becomes more apparent when comparing his actions to those of Harlan, Rodriguez, Dunlap, Davis, Neal, Woldt, and Martinez.
"From the beginning, Rodriguez and his brother were looking for a victim to kidnap whom they decided to rape, torture, and murder. From the beginning, Dunlap wanted and planned pure revenge. From the beginning, Davis, Neal, and Woldt craved and calculated sexual thrills perversely heightened by torture and killing. Martinez participated in sexual depredations on Brandaline Duvall, but from the beginning to the end, he simply wanted to torture and kill. Harlan's lengthy homicidal pursuit of Rhonda Maloney was preceded by two hours of rape.
"Page, in contrast, acted with sudden explosive and chaotic force. His behavior, though ruthless, was anything but methodical, disciplined or logical. All recent Colorado murders resulting in the death penalty are typified by calculation, scheming and opportunity for substantial reflection that belie fear or desperation on the part of the murderer."
Page had not acted with "comparable levels of depravity and evil," the two judges said. "We recognize that neither the Colorado death-penalty statute nor case law requires a finding of premeditation, prolonged torture or blood-lust as a pre-condition to imposing the death penalty. We also recognize and accept the jury's verdict that Page acted intentionally and after deliberation in killing Peyton Tuthill.
"Nevertheless, in the 'profoundly moral evaluation' we must make, we find those differences between Page's crime and other death-penalty cases to be significant and compelling."
The two judges had been moved by accounts of Page's childhood and believed it was another reason he did not deserve the death penalty. "The record is replete with credible evidence that Donta Page endured severe physical and emotional abuse as a child," they said. "We conclude that this abuse was a significant factor in the constellation of events and circumstances leading up to the explosive outbreak of violence in the Peyton Tuthill home. A specific causal link between past abuse and any particular act of violence cannot be proven to any degree of absolute certainty, but we note that the burden of proof is on the prosecution in the fourth step, and the defendant's evidence has raised substantial and significant concerns.
"We are aware that the 'abuse excuse' may be overused in some cases and often gives rise to justifiable skepticism. In this case, however, we find the proof of abuse and its probable effects to be persuasive."
While deterrence was one of the reasons the legislature supported the death penalty, the judges determined that the "deterrent effect" would serve "little, if any, purpose in a case like this." And while the death penalty could also "serve as society's need for retribution," they said, "the vengeance justification of moral outrage is premised on the presumption that it is morally beneficial for society at large to cast a murderer from the circle of humanity. That some crimes are so grievous an affront to humanity that the only adequate response may be the penalty of death.
"Our task is not to probe the utility or moral justification of the death penalty. We do not dispute that Page's crime was horrible or that his punishment should be severe. We do, however, dispute that the facts of the present case compel the conclusion beyond a reasonable doubt that Donta Page must be executed...The conclusions we reach are expressed in the midst of our own personal moral outrage at Page's conduct. We express our opinions with humility having exercised our best moral and reasoned judgment."
Unlike judges Meyer and Anderson, Judge Jackson did not agree that the proportionality review proved that Peyton's murder fell below the level of those murders committed by the men already on death row. "Woldt, Martinez, and Rodriguez each combined rape and sodomy with vicious stabbing death," he said. "I have trouble understanding how the cruelty of this crime and the viciousness of Mr. Page's destruction of Peyton Tuthill can be viewed as so different as to remove it from the category where the sanction that has been made a part of this state's law can be imposed."
Jackson also questioned the testimony of Page's family members. "I was left with the uneasy feeling that the accounts of the nature and extent of the abuse were exaggerated," he wrote. "There was little evidence that either Mr. Page's history of child abuse or the alleged brain damage was...related to Page's actions in Peyton Tuthill's home on February 24, 1999. The defense experts readily acknowledged that the vast majority of persons with those characteristics do not commit murders or other violent crimes.
"Peyton Tuthill lost her life in circumstances that are repugnant to any sense of decency and humanity that I can muster within me. I am utterly repulsed by this crime and this man. I have felt since the conclusion of the evidence that Page deserves the death penalty."