Dead Reckoning

"We have given our government the power to take away life. How that power is exercised, and who lives and dies as a result, goes directly to the kind of community and society we are."

Before the hearing, Meyer ruled against allowing community leaders to testify. But he waited until the morning of the hearing to issue his ruling regarding the jurors' request. Neither side in death-penalty cases should "campaign" to have jurors testify for them during the penalty phase, he determined; it would appear "unseemly and inappropriate" and could make jury selection more difficult. Nor did the Colorado death-penalty statute provide for jurors testifying at death-penalty hearings.

With that matter settled, Cooper opened for the prosecution, with a statement much like the one he'd delivered at the trial. This time, though, he included "aggravating factors" that the prosecution believed demonstrated why Page deserved the death penalty rather than life in prison: Page had committed burglary, robbery and rape in the course of the murder; he had committed the crime for monetary gain; he had intentionally killed his victim to avoid arrest; and the murder was especially "heinous, cruel and depraved."

In his opening, Canney argued that brain damage had left Page unable to control the outburst that led to Peyton's rape and murder.

This was the third first-degree-murder case in Canney's career -- and in as many years. The first was Frank Vigil Jr., one of the gang members accused in the May 1997 murder of fourteen-year-old Brandy DuVall, but that had not been a death-penalty case; Vigil was only sixteen at the time of the crime and therefore not eligible for a death sentence. Instead, he'd been sentenced to spend the rest of his life in prison.

Canney's first death-penalty hearing had been for mass murderer William Lee "Cody" Neal, who'd fired his public defenders and insisted on representing himself, with Canney appointed as advisory counsel. Canney believed that Neal was legally insane and had tried to have him found incompetent; the judge had disagreed. For Canney, it had been deeply troubling to watch Neal plead guilty and then figuratively, if not yet literally, hang himself at his death-penalty hearing in October 1999.

Yet neither of those two defendants had affected Canney the way Donta Page had. Vigil had played the hard-nosed gangbanger; Neal had come across as a raving sociopath who was more cooperative with the prosecutors than with his defense counselor. But Canney had spent a lot of time with Page, and he'd come to know him as a human being.

For such an enormous man, Page seemed more like an injured child than a cold-blooded killer, one who was truly remorseful for what he'd done. Although plenty of Canney's clients had said they were sorry, he hadn't always believed them -- and usually no one else did, either. But in this case, he could swear that Page's sorrow and remorse were genuine.

That didn't excuse what Page had done, of course. His defendant was a dangerous man -- the factors that Dr. Pincus had described at trial, and would describe again at the death-penalty hearing, were still present; if Page were to be released into society, he would likely reoffend. But there was another side to Donta Page, one that Canney believed didn't deserve to die.

Still, it was difficult to stand in front of the victim's mother now and argue that, while heinous, Peyton's death was not "especially" heinous, cruel and depraved. That it didn't have the sustained torture or level of violence that marked the murders that had landed six other men on death row. He didn't want to hurt Peyton's family any more than they had already been hurt. He just hoped her mother would understand when he warned the judges that killing Page would "lower the bar" for the death penalty in Colorado.

Pat despised him for it. The previous week, she had filed a wrongful-death lawsuit against the state of Maryland and its officials, claiming the state had ignored the interstate compact that covered sending violent offenders to other states. She hoped that the suit would help change the system -- but she knew it would bring her no consolation. The trial had been cruel, but the hearing looked like it would be even worse. And her detest for the defense attorneys grew when they called Ingrid Defranco to the stand. At Salmon's hearing, Defranco had presented a proportionality review that compared the murders and murderers who had been sent to death row to Salmon and his participation in the rape and death of Jacine Gielinski; two of the judges on that panel had rejected her testimony that Salmon didn't "fit the profile" of those other killers. But the third judge, a former public defender, had agreed and said that sentencing Salmon to death would have lowered the bar for the death penalty.

Now, again over the prosecution's objections, Defranco made the same argument on behalf of Page.