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Dead Reckoning

Donta Page's sentence revives Colorado's death-penalty debate -- but brings no closure. The Conclusion of "Penalty Zone."

Chlouber was supported in his efforts by Peggy Luiszer, Jacine Gielinski's mother. Both Salmon and Woldt "deserved to die for their actions," she said. Had his trial judge made the death-penalty decision, Salmon would have landed on death row, too.

Chlouber's bill faced opposition from both sides, however. The Colorado District Attorneys' Council said it was too soon to abandon the existing system; the Colorado Bar Association said the measure would put "inappropriate pressure" on a single judge. The proposal met a quick death, as did another measure that would have returned the death-penalty decision to juries.


 
Michael Hogue
 
Pat Tuthill carried this picture of her daughter Peyton to the trial and death-penalty hearing of Peyton's murderer, Donta Page.
Pat Tuthill carried this picture of her daughter Peyton to the trial and death-penalty hearing of Peyton's murderer, Donta Page.

The Donta Page sentencing had shown that, for better or worse, judges were just as subjective and human in making their decision as any twelve jurors. The difference was that judges were required by law to say how they'd reached that decision. And in the Page case, much of their reasoning didn't hold up.

The judges had accepted Page's "cooperation" as a mitigator -- but he'd done everything he could to get away with the crime, including denying it. William Neal, who'd murdered three women, had been much more cooperative with authorities -- even giving his pager number to the police and leaving a full confession -- but the judges rejected that as a mitigator, and he was sentenced to death row.

The question of premeditation was also sticky. While the public may think of premeditated murder as plotting and planning over a substantial period of time before carrying out the deadly act, that's not the legal definition, and judges know it. All it takes for premeditation in the legal sense is the time -- be it a moment or a day -- that it takes to make the decision to kill. The jurors decided that Page had deliberated and that Peyton's murder was premeditated; ironically, his defense attorneys had wanted four jurors to testify at the death-penalty hearing as the "conscience" of the community.

The two judges' assessment of the proportionality review was particularly problematic. They picked and chose portions of cases when they fit their arguments, and ignored other aspects.

For example, Meyer and Anderson wrote that death-row resident Frank Rodriguez and his brother, Chris, had set out to kidnap a woman and then rape and kill her. But the evidence in the trial showed they were looking for someone to rob and decided to steal Lorraine Martelli's car. Unlike Page, the Rodriguez brothers had a history of sexual assault; however, when Chris started assaulting Martelli, Frank wasn't present. And although the total time of Lorraine Martelli's abduction, rape and murder was longer than Peyton Tuthill's ordeal, it was impossible to determine that the former was treated more brutally than the latter.

Robert Harlan fantasized about raping and killing a woman, but his happening on Rhonda Maloney, whose car had broken down, was as unplanned as Donta Page being in the house when Peyton came home. Rhonda was beaten severely over what was probably an extended period of time, but the end came quickly with a bullet to her head.

Nathan Dunlap didn't sexually assault his victims. He also killed them quickly, without the "gratuitous violence" of other cases that the judges cited in their Page decision.

Nor did Cody Neal sexually assault the women he killed, although he later raped a fourth woman. He was sentenced to death on three separate counts, one for each murder victim. Yet two of his victims did not have reason to fear they were about to die; indeed, they were expecting a "surprise" when he brought his ax crashing down on their heads.

Gary Davis raped and tormented Virginia May before striking her in the head, fracturing her skull and then shooting her fourteen times. There is no evidence that the period from rape to death stretched any longer than it did for Peyton Tuthill.

There is little question that the death of Brandy DuVall at the hands of Francisco "Pancho" Martinez Jr. and other members of the Bloods gang was one of the most heinous crimes imaginable. But there was no evidence presented at trial that Martinez's initial intentions had been to torture and kill the young girl; actually, he'd had no idea that other members of the gang would be bringing a young woman to the house. Nor was there any mention of killing Brandy, an idea first broached by Frank Vigil, until several hours into the sexual assault, when the gang as a whole decided that she needed to die in order to eliminate the witness.

Just as Page decided that he needed to eliminate his witness.

George Woldt and Lucas Salmon fantasized about abducting, raping and killing a woman. But Jacine Gielinski was chosen at random, then raped and stabbed to death. Two judges in that case had voted to execute Salmon. Would that mean that in future proportionality reviews, Page, who was spared by all three, would rank lower as a killer than Salmon? That his crime was less heinous? And two judges, including Leland Anderson, had voted to send Danny Martinez to death row, even though he didn't wield the knife that killed Brandy DuVall. But now Page, who'd wielded the knife and acted alone, had been spared by all three judges.

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