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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."

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.

 
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.

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

The very thought of comparing murders horrified Pat Tuthill. How could these defense attorneys argue that what had happened to her daughter was somehow "less heinous" than what had happened to other victims? She wanted to scream: What else would Page have to have done to climb over some imaginary bar? Decapitate her instead of just cutting her throat? Dismember her rather than nearly slicing her thumbs off? How many more times did he have to stab her? How many more ways did he have to rape her? How much more of her blood did there have to be on the walls, the bed, the floor?

How could they rank murders?

The process Meyer had adopted for Page's death-penalty hearing was different from the other panels'. Most of them had followed the same procedure used by juries, conducting the hearing like a trial, with opening statements, the prosecution's case, then the defense case, then closing arguments. But Meyer had served on the Jacques Richardson panel for which the presiding judge, Stephen Phillips, had the judges rule at each of the four death-penalty steps: first on the aggravating factors, then on the mitigating factors, then determining whether the aggravating factors outweighed the mitigating factors, and then finally, closing arguments as to the fourth step, whether the defendant deserved to die.

Meyer followed that same pattern. So the judges first listened to the prosecution's arguments supporting the aggravators; then they deliberated and determined that the prosecutors had proved three of the four, including that Page had killed Peyton in an especially heinous, cruel and depraved manner.

Next the defense presented its mitigating factors, which the attorneys were not required to prove. After deliberating, the judges allowed that because of brain damage, Page had "impaired capacity" to appreciate the wrongfulness of his conduct and conform it to law. They also allowed a second mitigator, that his emotional state of rage and fear at the time of the crime made him unable to control his impulses. A third potential mitigator was Page's "cooperation with the law." Here the judges noted that Page had tried to destroy evidence, had fled to Maryland and given a false name to police there, and had initially denied his involvement in the rape and murder. However, they ruled, "he ultimately did confess to the crimes, waived extradition and made an almost immediate offer to plead guilty to all charges and accept a sentence of life imprisonment without possibility of parole." Although that move may have been "tactical," the judges determined it "nonetheless is a form of cooperation." Page had also cooperated while at the state hospital and was "quiet and respectful in the courtroom."

So far, the judges had followed much of the jury's deliberation. But now they broke from the jurors who'd convicted Page, agreeing with the defense attorneys that Peyton's rape and murder "were not planned or premeditated." Along with Page's abysmal background, that was the most significant of the mitigating factors when it came time for them to take the third step: to decide whether the aggravating factors outweighed the mitigating factors.

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