Dead Reckoning

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

Proportionality reviews have now been allowed in three of the last four death-penalty cases.

In the future, critics wonder, will judges weigh the murderers' post-crime congratulations? Woldt and Salmon gave each other high-fives. Dunlap bragged to a friend. After killing two of his victims, Neal rented a limousine and went out for a night on the town with his girlfriend and his future rape victim.

Or judges could break the crime down into the number of wounds. Lorraine Martelli and Brandy DuVall were each stabbed 28 times, while Peyton Tuthill and Jacine Gielinski were each stabbed only four -- but their throats were cut.

 
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.

And how much will the defendants' backgrounds matter? Robert Riggan's childhood in rural Iowa was every bit as abysmal as that of Donta Page's on the mean streets of Washington, D.C., yet Riggan was spared not because of his past, but because the jury had not found him guilty of first-degree murder after deliberation. Francisco Martinez was raised in a rough, gang-infested neighborhood, and he's on death row. So is George Woldt, who was beaten by his alcoholic father, perhaps sexually abused by his mentally ill mother.

The simple truth is that there are no rules for where the death-penalty bar is set. Each murder is unique; each murderer is unique. And so is every panel of judges, just as every jury that has had to make a death-penalty decision has been.

When the lone holdout juror in the 1988 death-penalty hearing for mass murderer Michael Tenneson was asked why she refused to cast the final vote for execution, she replied that she had a "gut feeling" it wouldn't be right. So Tenneson was sentenced to life in prison.

Although judges couch their death-penalty deliberations, particularly regarding that fourth step of whether a defendant "deserves" to die, in legalese, they come down to gut feelings, too.


Of the eight death-penalty hearings since the Robert Riggan case went before the first three-judge panel in April 1999, three have resulted in a death sentence. That's about the same percentage of murderers that juries sentenced to death.

Although defense attorneys had warned legislators back in 1995 that the new death-penalty system would open the floodgates for state-sanctioned executions, it is still difficult for prosecutors to send a killer to death row in Colorado. And most prosecutors say that is at it should be. Denver DA Bill Ritter says he doesn't want Colorado to adopt the "death culture" of those states that have hundreds of men on death row and could possibly execute an innocent man.

When it became apparent that Illinois had a number of innocent men on death row, that state's governor issued a moratorium on the death penalty until the system was improved. His move prompted a call for similar moratoriums in other death-penalty states; the Colorado Bar Association issued the request in this state.

Steve Bernard, the Adams County assistant deputy district attorney who helped DA Grant prosecute Robert Harlan, recently asked the bar to rethink its position. The problems that exist in other states don't exist here, he wrote, as evidenced by the fact that only six men wait on Colorado's death row -- all guilty beyond a reasonable doubt. "I believe that for a certain limited classification of defendant," he said, "the only rational response to the evil that has flourished in these cases is the death penalty. In these cases, it is as though a finger from hell has poked into our world and taken someone away. The death penalty is the answer to that evil."

But David Kaplan, head of the Colorado Public Defender's Office, says it's still too early to determine if Colorado's three-judge panel system is fair. "There's only been eight so far," he notes. "That is not a very large number." Meanwhile, he claims, death-penalty case filings by district attorneys are up.

The debate over the death penalty heated up with the execution of Tim McVeigh. Although McVeigh was charged federally, his case was inextricably linked to Colorado. He was tried in federal court in Denver before a jury of Coloradans. Al LaCabe, a former Denver deputy district attorney who'd helped prosecute double murderer Kevin Fears, was one of the U.S. Attorneys who tried McVeigh. Aware of Coloradans' historical reluctance to impose the death penalty, he and his fellow federal prosecutors met with Colorado prosecutors -- including Mike Little, his partner in the Fears case -- to develop a strategy before the trial. And jurors not only found McVeigh guilty, they sentenced him to death.

Two Colorado attorneys were appointed to aid in McVeigh's appeals: Nathan Chambers and Dennis Hartley, the pair who'd represented Robert Riggan. A former Denver prosecutor, Chambers remained on board the McVeigh team all the way through the execution.

Compared to McVeigh's relatively quick trial and execution, the cases of the men on Colorado's death row have moved slowly. Although Robert Harlan, who murdered Rhonda Maloney in 1994, has a date with death this August, it's likely to be postponed. Yet another hearing for Ronald White has also been postponed; public defender Terri Brake filed a motion saying she couldn't go on because she was still too upset after George Woldt, another client, was sentenced to death last year. Meanwhile, Woldt, Nathan Dunlap and Francisco Martinez have years of appeals ahead of them.

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