By Joel Warner
By Michael Roberts
By Joel Warner
By Michael Roberts
By Alan Prendergast
By Michael Roberts
By Michael Roberts
By Amber Taufen
Peyton was a child any parent would be proud of: loving, intelligent, athletic, talented, adventurous -- but not entirely angelic. She had a mischievous streak, exhibited the day her sister, Cara, two years younger, ran into the house crying. Seven-year-old Peyton had found a dead frog and told Cara that if she kissed it, it would turn into a handsome prince. Of course, all Cara got out of the deal was a taste of dead frog, but Peyton got a good laugh.
In high school in Florida, Peyton was a good student, a cheerleader, athlete and lifeguard who belonged to community-service organizations and church youth groups. At Charleston College in South Carolina, she continued to display her giving spirit, working as a drug and alcohol peer counselor and taking four underprivileged children under her wing for the four years she was there. As a senior, she volunteered at a convalescence home for the elderly, accompanying herself on the piano as she sang old songs -- "Shine On, Harvest Moon," "A Bicycle Built for Two," "Over the Rainbow" -- that calmed even the crankiest patient.
For a graduation present, Peyton's parents, who'd divorced several years earlier, offered their eldest daughter a trip to Europe. But Peyton asked instead to use the money on a four-week course at the Wyoming Outdoor Leadership School.
Peyton made the right choice: Pat knew that whenever she looked at the photograph of her daughter at the wilderness school. In the picture, Peyton was on horseback, wearing a beat-up cowboy hat and a yellow slicker in the falling snow. The weather hadn't dampened her smile. Few things did.
Back home, Peyton decided that she wanted to move to Denver and attend the Colorado Institute of Art. Her father was against her living so far from Florida, and Pat initially was wary of the move, too. "Why don't you wait until spring?" she asked, pointing out that ice and snow could make it dangerous getting around.
But Peyton was adamant that she wanted to go -- and soon. So she and Heather, her college roommate, and Maggie, the small springer spaniel Peyton had gotten freshman year, packed up and moved west in the fall of 1998.
They didn't have jobs or even a place to stay. Peyton solved the first problem by signing up with a temporary-services agency, and the second when she located a duplex in the 1600 block of Gaylord Street. It was an old part of town that reminded her of similar neighborhoods in Charleston, she told her mother, right down to the racial mix of residents. Since Peyton didn't have money coming in yet, Pat talked to the landlord and said she'd be responsible for the rent. She asked the landlord if the neighborhood was safe. This was the first time she hadn't checked out a place where Peyton would live, hadn't installed extra locks. She was relieved to hear that there'd never been any problems.
Peyton loved Denver, and she soon met a nice young man. Over the holidays, they went to Florida to see her parents. Although the couple was already talking about marriage, Peyton assured her mother that they were a year away from making any firm plans. But Peyton had always dreamed of getting married, of having kids of her own as well as a career; she'd even found a photograph of the wedding dress she wanted in a magazine and stashed it in a small wooden box that contained her "treasures." She was full of plans.
During one conversation -- Peyton talked to her mother almost every day -- she said that she might volunteer at a drug and alcohol rehabilitation center, the Stout Street Foundation, which was just a couple of houses down the block. She'd already talked to Stout Street administrators; she said she was told that the residents were there voluntarily. "They said if I ever had any trouble to just give them a call and they'd be right over to help," Peyton reassured her mother.
Before she started volunteering, though, Peyton wanted to get a real job. And on February 23, she told her mother that she had an interview the next day with the Cystic Fibrosis Foundation. Peyton promised to call her mother and tell her how it went.
When she hadn't heard from Peyton by 6:30 p.m. the next evening, Pat called her daughter. No one answered, so she left a message. Four hours later, when Pat was heading to bed, she still hadn't gotten a call from Peyton. She must be out doing something, she thought. Maybe celebrating her new job.
Twenty-two-year-old Donta Page wasn't in Denver because he wanted to live here. He'd been raised in the Washington, D.C., area, partly by his mother -- who'd given birth to him at the age of sixteen, after first trying to abort the pregnancy -- and partly by his grandmother. He'd never met his father.
But mostly Page had grown up surrounded by violence on the streets, sometimes sleeping in abandoned buildings to avoid the abuse at home. He'd been shot once and had seen two of his teenaged friends killed, but he'd also been an active participant in the violence. In 1996, during a convenience-store robbery, he'd punched a female clerk and then struck her on the head with the butt end of a large knife, threatening to kill her. The assault ended when a customer entered the store and Page fled. But the police caught up with him, and in November of that year, he was convicted of aggravated robbery and burglary and sentenced to ten years with the Maryland Department of Corrections.
In the fall of 1998, a Maryland judge reconsidered his sentence and let Page out of jail on probation, on the condition that he enroll in a drug and alcohol rehabilitation program. The Maryland probation department allowed him to seek treatment at the Stout Street Foundation in Denver -- but failed to notify Colorado authorities of the state's new resident, as required by an interstate compact.
Page didn't last long at Stout Street, where other residents complained that he assaulted them physically and sexually. On February 23, 1999, after only half a year with the program, he was kicked out. Put out on the street with no money, Page was told he could return the next day to pick up his personal belongings and a one-way ticket back to Maryland. That night, as he strolled along Colfax Avenue with a friend who'd also left Stout Street, Page pointed out a pharmacy where he'd robbed a customer at gunpoint.
The next morning, Page returned to Stout Street, where officials told him he could get a ride to the bus station at 1:30 p.m. With a couple of hours to spare, Page decided to make use of his time. Earlier, he'd seen a young woman leave a duplex a couple of houses away; now he headed over there to burgle the home.
Page first tried to get in through a basement window. When that didn't work, he used his massive body to break down the back door. In the kitchen, he helped himself to a bottle of beer, wrapping a paper towel around the bottle to avoid leaving fingerprints. He then grabbed a knife, also wrapping its handle in a towel. He was standing near the back door when he heard the young woman return.
After her interview at the Cystic Fibrosis Foundation -- she'd gotten the position on the spot -- Peyton wanted to change her clothes and let Maggie out of the upstairs bedroom before she went off to her temporary job. She parked in front of the duplex, went in the front door, headed for the stairs and saw him: a huge black man brandishing a kitchen knife and demanding to know where she kept her money.
She screamed and ran up the stairs, with Page in pursuit. He caught her at the top, punching her several times in the face and striking her on the head with the butt end of the knife, opening a deep cut. Peyton fought back, warding off slashes from the knife with her hands, screaming for help. Her blood spattered the walls, railing and floor. But at half his size, she was no match for her attacker. A dog was barking frantically behind one closed door, so Page pulled her into another bedroom.
What happened next will never be known for sure. At some point, Page tied Peyton's hands together with the cord to an iron. He again demanded to know where she kept her money and she told him in her purse, outside in the car. He took her keys and went out to the car, then returned to find that Peyton had worked free from her bonds. She was coming down the stairs when she saw him return, and ran back to the bedroom. There was no way out.
Either before going to the car or after returning -- or both -- Page raped Peyton. He tore her blouse off, leaving her bra, and yanked off her pants and panties without bothering to remove her shoes. He raped her on the bed, her bloodied head banging up against the walls in the corner. He raped her vaginally, and he raped her anally. Her blood dripped down the walls and down the side of the sheet as she screamed.
To silence her and to eliminate the only witness to what he had done, Page pulled Peyton into a sitting position on the edge of the bed and slit her throat -- a wide, gaping wound that gushed blood. But still she screamed.
Perhaps this was when Peyton received the terrible cuts to her hands that severed the webbing between her forefingers and thumbs. Perhaps, investigators would later surmise, she grabbed for the knife as he plunged it twice into her chest.
Mortally wounded, Peyton stood, or was pulled up, and her tormentor stabbed her twice again. The blade plunged in as deep as eight inches; two of the four wounds cut through major blood vessels around her heart and into the heart itself. She staggered a step or two toward the corner of the room, where she collapsed. It could have taken as long as a minute, each second representing another beat of her heart, for Peyton to die and the horror of what had happened to fade with her consciousness.
Even though the young woman was dead, Page did not leave the house immediately. He went downstairs and did his laundry, trying to clean the girl's blood off of his sweater. Giving up, he placed the sweater, the bloody knife, a piece of the splintered backdoor frame and two cameras in a plastic bag and threw them in a trash bin outside the home. Then he returned to Stout Street, getting there in time for his 1:30 p.m. ride to the bus station and his return trip to Maryland.
Peyton's body wasn't discovered until about 8:30 that night, when one of her roommates arrived home. Coming in from the alley, he noticed that the back door had been shattered. He called the police and waited for a patrol officer to arrive. Armed with a flashlight, together they crept through the dark duplex. First they saw the blood, and then the beam fell on the body of Peyton Tuthill.
Pat Tuthill was at her job in the marketing office of a medical center when the executive director called and said he needed to meet with her. When she arrived at his office and saw two of her closest friends from work there, her heart jumped into her throat. She knew something had happened to one of her daughters.
"Which one?" she asked quietly.
"Peyton," one friend replied.
Pat asked if there'd had been an accident. Did she need to get on an airplane? Go to a hospital?
The friend shook her head. "No. She was killed."
"What do you mean 'killed'?" Pat asked, not comprehending. "Killed in an accident?"
Again, her friend shook her head. "No, someone killed her."
Pat stood there. Not believing. Not understanding. She sat down, emotionless, and suddenly thought of Cara and Peyton's father, Steve. Someone was going to have to tell them. She didn't know the police were already talking to Steve and Cara; a few minutes later, the police arrived to talk to her.
That's when reality hit. Peyton, her beautiful, kind, sweet Peyton, had been murdered. She began to cry, and cried as though she would never stop. With the tears, a fog descended. Pat would remember her physician handing her a bag of pills and hugging her. "Remember, we love you," he said. "But you're going to need to take these for a while." She recalled someone giving her several of the pills to swallow.
The pills may have helped calm her, but they didn't stop the tears. Or the guilt that rose in her like a fever. She'd promised...promised...to keep Peyton safe. Intellectually, she knew it was a promise no parent could guarantee would be kept. But still, she had promised, and now her child was dead. She thought of all the things she should have done. She should have backed her ex-husband when he insisted that Peyton not go so far from home. She should have gone to Denver, checked the neighborhood, made sure the house was secure.
In the days and weeks that followed, people kept trying to tell Pat what had happened to her daughter -- they didn't want her to learn the details from someone in the press. But she tuned them out. She didn't want to know about Donta Page, the man they'd arrested in Maryland and charged with her daughter's murder. She didn't want to know what he'd done to her.
It had been difficult enough talking to Denver's district attorney, Bill Ritter. He was as comforting as he could be under the circumstances. He'd even asked what she thought about pursuing the death penalty.
Pat wasn't sure what to tell him; she'd never given the death penalty much thought. She supposed that if she knew that murderers would go to prison and stay there for the rest of their lives, that would be the best way to deal with them.
She asked Ritter if he could guarantee that Donta Page would stay in prison for the rest of his life, would never be able to hurt anyone again. Ritter told her that he couldn't make such a guarantee. Then, she said, she would support whatever decision he reached.
Over the next few weeks, Pat Tuthill thought a lot about the death penalty. She stayed up nights researching sentencing and crime statistics and talked to law-enforcement authorities during the day. She learned that there were more than 800,000 murderers walking the streets and that the average stay in prison for taking a life was less than ten years.
She knew those statistics included lesser charges such as manslaughter, not just first-degree murder. She also knew that if Page was convicted, he would, at the very least, be sentenced to life without parole. Still, there were prison escapes and governor's pardons. And what if he killed a prison guard or another inmate? What about that victim and his family?
When Ritter called to say that he thought his office should pursue the death penalty, she said she agreed with his decision. She didn't think of it as retribution. Revenge would change nothing; it wouldn't give her peace or bring Peyton back. But it was just, and it would rid the world of an evil man.
Donta Page's trial began November 3, 2000, in front of Denver District Court Judge Joseph Meyer III. Pat and Steve Tuthill and other family members and friends of Peyton sat in front, behind the prosecution's table, in the row reserved for the victim. There was no shielding Pat Tuthill as they listened to Deputy District Attorney Henry Cooper deliver his opening statements with a blow-by-blow account of what Page had done to Peyton.
The defendant, Cooper said, "violated Peyton Tuthill in every way a human can...motivated by his lust for violence." Then he'd calmly washed his clothes, gathered items he wanted to steal, disposed of the evidence and things he didn't want, and walked back to Stout Street to wait for his ride.
Page had confessed that he slashed Peyton's throat "because he didn't like her screaming," said Cooper. "He killed Peyton Tuthill so he wouldn't get caught."
In his opening, defense attorney Randy Canney surprised the court. Page wouldn't contest his guilt for most of the crimes he was charged with, Canney said, including first-degree felony murder. The only exception was the charge of first-degree murder after deliberation.
Long before the trial began, Canney and lead counsel Jim Castle had offered to plead their client guilty to all of the charges, including first-degree murder after deliberation, if the DA wouldn't pursue the death penalty; however, the DA had turned them down. Canney knew the best chance for saving Page's life now was if the jury was satisfied with convicting him of first-degree felony murder. While that could still expose Page to a death-penalty hearing, neither a Colorado jury nor two panels of judges had sent a man to death row for felony murder. Judge or jury, it had always taken a conviction for first-degree murder after deliberation, along with the words that the defendant "intentionally caused the death of another."
So that was what this trial was all about. Page did not kill Peyton "after deliberation," his attorneys argued; he was mentally ill, his ability to deliberate removed by brain damage and years of childhood abuse.
Canney told the courtroom that Page was just three years old when his mother whipped him with electric cords until he bled, leaving scars on his back and legs. As a child, Page was repeatedly taken to the emergency room -- once after he fell on his head from a moving car. When he was ten, his grandmother's boyfriend raped him.
"We're not asking you to excuse Donta Page," Canney said. "We are asking you to hold him responsible and find room in your verdict to understand what happened here."
Pat Tuthill tried not to listen. She didn't look at photographs from the crime scene. She turned her face when the jury was shown a video that included footage of Peyton's body lying in a pool of blood.
Page's taped confession to Denver detective Jon Priest was played on the trial's second day. At times mumbling and barely discernible, Page talked about arriving at Stout Street and learning he wouldn't be leaving until 1:30 p.m. "I ain't got no money. I ain't have nothin', so it dawned on me that I seen that lady leave," he said. He'd grabbed the knife when he heard the lady return. "I jus' kept askin' her, 'Where the money at? Where the money at?' And she kept sayin' she didn't have none...She jus' kept fightin' me, fightin' me, kickin' me, so I tried to cut her throat."
When the defense took up its case, the attorneys focused on two issues. One was the alleged abuse Page had suffered as a child. His grandmother testified that he'd been beaten and verbally abused by his mother, who'd resented him from the day he was born. She said he was taken to the emergency room when he was ten for rectal bleeding, the result of one of her boyfriends raping him.
The other issue was brain damage. Defense experts, including Dr. Jonathan Pincus, testified that Page suffered from brain damage to his frontal lobes, perhaps as a result of having been shaken as an infant. Pincus, a neurologist from Georgetown University, had testified just a few months earlier on behalf of George Woldt who, along with Lucas Salmon, had murdered Jacine Gielinski in Colorado Springs in April 1997. A calcified growth in Woldt's brain, along with physical and/or sexual abuse as a child and an obsessive-compulsive personality disorder, could have been linked to Woldt's violent criminal acts, Pincus testified. Still, in September 2000, Woldt was sentenced to die.
As he had in Woldt's case, Pincus now testified that he'd interviewed 150 to 200 convicted murderers, many of them on death row, and found three factors common to most of their crimes: mental illness, physical and/or sexual abuse as a child, and neurological disorder. Like Woldt, Page qualified for all three: He had brain damage, he was abused, and he had an antisocial personality disorder.
Prosecutors called their own experts to rebut the defense's experts. Dr. David Johnson, the forensic psychiatrist at the state hospital in Pueblo who'd observed Page and deemed him competent, testified that blaming violent criminal behavior on brain damage was "a speculative interpretation." Although Page could have sustained head injuries, he thought it was unlikely, because tests indicated that the defendant's brain was functioning normally. Page knew at the time that what he was doing was wrong, Johnson said, pointing to his attempts to dispose of evidence and his escape.
In his closing argument, prosecutor Phil Brimmer began by reminding the jury that when Peyton returned from her successful interview with the Cystic Fibrosis Foundation, "her thoughts were filled with hope for the future.
"Little did she know that as she entered her home, her future would last only as long as it took this man to terrorize and kill her," he said, pointing to Page.
This was Brimmer's first death-penalty case since joining the DA's office in 1994 after years in private civil practice. He'd found the experience to be incredibly sad, much more so even than other murder cases. Only in a death-penalty case was there such an emphasis on getting to know someone as well as he would know a friend or family member. It was up to the prosecutors to portray the meaning of Peyton's life and her family's loss. Brimmer knew Peyton's likes and dislikes, her sense of humor, her dreams and goals. He'd heard the stories of her childhood, heard stories about her as a young woman. He'd grown to like her. But what struck him most about what had happened to Peyton was that it was every woman's worst fear come true: to be trapped and attacked in the place she was supposed to feel most safe, in her home, with no way out.
"Mr. Page did not have an ideal childhood," Brimmer said. "He did not have a father figure. He did not have a mother who gave him the attention that a mother should. He may have been sexually abused once. He may have been physically abused as a child. And if that's true, none of those things are the defendant's fault.
"But by the same token, none of those things excuses what he did to Peyton Tuthill. Does the fact that someone is abused as a child give that person the right to kill someone? Does the fact that someone may have been physically abused as a child give that person the right to sodomize a helpless woman?
"There are few people in life who are dealt a perfect hand. But despite not getting a perfect hand, people make do. They work hard. They try to improve themselves...They follow the rules of society and they follow the laws that people have passed to govern conduct...
"Ask yourself the following question: Why is his entire life story relevant to your deliberations?"
Jim Castle closed for the defense. He'd turned down the first request that he represent Page from the Alternate Defense Counsel, a group that finds attorneys for defendants who have a conflict with the public defender's office; he and his wife, also a defense lawyer, had a four-month-old baby as well as two other children, and he didn't want his family to suffer through the enormous sacrifice a death-penalty trial entailed. As a veteran of five other death-penalty cases, he knew that such a case would insinuate itself into every part of his life. He wouldn't be there for his children's events. Saturday wouldn't be a family day, but a day of work. His wife would have to do double duty at home as well as manage her own career. And the stress of having a man's life in his hands would be with him through every waking hour and would still hover as he slept.
But the Alternate Defense Counsel had called again: There was no one else. Castle had talked it over with his wife, and they'd agreed he had to take the job. He needed help, and he'd begged other attorneys to assist him for months before Canney finally agreed to join the team.
Now Castle had to convince twelve jurors to make the decision that would justify his sacrifice. "It will be a long time, if ever, before any of us will forget the image of Peyton Tuthill in that bedroom, or the image of a six-year-old boy wiping the blood off his body from wounds that his mother inflicted," he began.
"It will be a long time, perhaps never, before any of us can forget the sounds of Peyton Tuthill's screaming in the last few minutes of her life, or the bleeding of a little boy asking his mother to please leave him alone because he'll never do it again.
"It will be a long time, perhaps never, before any of us will be able to forget the indignity of the rape of Peyton Tuthill, or the indignity of a ten-year-old boy being raped in the only place he ever felt safe.
"These are the lasting images of this trial. We can't look at one without thinking about the other."
Peyton was a woman who had "everything before her," he said. "She didn't deserve this in any fashion, nor does her family. The horror is everyone's nightmare. As a parent, I can't imagine what her family is going through. And I don't want any of my comments here to in any way suggest that what happened to her is at all excused by anything that we've presented or anything that I say, because there's no excuse for what happened to her in that house."
But it was his job to give the jury a picture of what had happened in Page's life, he said, asking the jurors to think carefully about the meaning of murder after deliberation: "What we have to say is that the person killed another human being after they reflected on it and after they used judgment...A person who knows what they're doing but also sits there and reflects on it and still says, 'Yes, I want to murder.' That's what the law says.
"And none of the experts can tell us that Donta Page deliberated in this case."
Page was not using abuse as an excuse. "He is taking responsibility," Castle told the jury. "We're asking to be convicted of first-degree felony murder, first-degree sexual assault, first-degree burglary and aggravated robbery. You, as the jury, are the conscience of our community...And your verdict is the voice of the community in this case."
At the end of his closing, Castle asked Canney to read a letter that Page had written to Dr. Johnson at the state hospital. "I'm sorry but I'm not very good with words," the letter began. "I never felt comfortable with speaking what I feel.
"Dr. J, I'm just writing to say thank you for not judging me before you got the chance to talk to me. Because no matter what people say, that was not me that day. Donta likes to walk in the park, go fishing, watch birds, that type of stuff. I know it sounds crazy, but that's who I am.
"For whatever reason the court sent me here, I don't care because I know it won't matter in the end. All they see is a black man that killed a white woman. Nobody took the time to ask why but rather who. I've been asking for help for years. Nobody cares until I hurt someone, then they wanted to give me medicine, but when I went home nothing until I got in trouble again.
"My lawyer came to see me Friday. I told him I was going to do this. He said it was not a good idea, but I don't care. Dr. Johnson, I don't know what will happen with me, but I know I'm going to jail. I'm sorry for what I did and I have to pay for it. In jail, nobody is going to care why or help. Dr. Johnson, I don't see what I really have to live for.
"I'm 24 years old. I never had a chance to live. Now it's over."
After Canney sat down, Cooper rose to offer the prosecution's rebuttal. "The defense wants you to examine what happened in Maryland and what happened in D.C. and to somehow use that to excuse what he did in your community, in your city, but that's not the law," he told the jury.
"Do not let the defense distract you from what you took an oath to decide. Do not let the defense distract you from the issues in this case. Don't lose sight that we're here to judge the defendant's conduct on February 24, 1999. Don't lose sight of the selfish, callous motives that were behind what the defendant did in this case. Don't lose sight of the cold-blooded, intentional, purposeful way this defendant behaved both before and after he killed Peyton Tuthill...The evidence of intent and deliberation, ladies and gentlemen, is overwhelming. He placed his own freedom ahead of Peyton Tuthill's life.
"Ladies and gentlemen...I'm asking you to deliberate and reach a verdict that says, 'Mr. Page, we have examined all the evidence. You had a rough childhood, but that's no excuse for what you did...We believe you deliberated, and we believe you are guilty of first-degree murder."
And with those words, the trial ended. Judge Meyer read the jurors their instructions and then sent them off to deliberate.
Pat Tuthill returned to her hotel room to cry. She'd forced herself into the courtroom each day, bringing with her two photographs of Peyton, including the one taken in Wyoming. And she'd brought flowers -- daisies, Peyton's favorite. She wanted to remind everyone that her daughter had once been a beautiful young woman with her whole life in front of her, not a body to be argued over by lawyers.
She thought Judge Meyer had managed his courtroom well and ruled fairly for both sides. But the defense lawyers had driven her to distraction with their arguments about whether Page had deliberated. Of course he deliberated, she thought. He could have left when he heard her come in; she hadn't even seen his face. If all he wanted to do was rob her and get away, why did he have to rape her? And not just rape her, but beat her around that room and then sodomize her? He wanted no witnesses, but did that include mutilation and torture? He wanted to rape her. He wanted to terrorize and kill her. He'd deliberated.
The jury agreed. After two days, on November 21, they returned with their verdict: guilty of all charges, including first-degree murder after deliberation. Peyton's friends and family released a collective sob. Page looked down at the defense table, betraying no emotion.
Because Page was now facing a death-penalty hearing, the prosecutors wouldn't comment after the verdict. Page's attorneys also left the courthouse without making a statement. They released one later: "Our hearts go out to the Tuthill family. Our sincerest hopes and prayers are that they can begin the process of healing.
"Whether or not Donta Page lives or dies is now up to a panel of three judges. Our remaining hope is that his life as the victim of severe abuse, neglect, rape, brain damage and mental illness will lead these three judges to a decision which will recognize that a life sentence without parole is a just result."
The death-penalty hearing for Donta Page began on February 20, 2001, in front of trial judge Meyer and two judges selected to serve on the panel with him, Leland Anderson and R. Brooke Jackson, both of Jefferson County District Court. But the legal maneuvering had begun well before that.
Soon after the trial, Page's defense team had sent a letter to local religious, business and community leaders asking them, as the "voice of the community," to weigh in against the death penalty. While statewide polls had repeatedly found that Coloradans supported the death penalty, in Denver no man had been sent to death row since 1987, when a jury had sentenced Frank Rodriguez to death for the rape and murder of 54-year-old Lorraine Martelli. The letter was posted on the Coloradans Against the Death Penalty Web site. Peyton's family saw it as a hurtful attempt to drum up public support for Page.
Their anger grew when they learned that four jurors from the Page trial had signed affidavits asking that they be allowed to testify that they believed Page should be sentenced to life in prison.
The idea of jurors who had just convicted a murder defendant asking to testify in front of a death-penalty panel was a new twist on the state's death-penalty system. Lucas Salmon's attorneys had tried a similar tactic in June 1999, but the court had denied their request. Salmon was spared the death penalty when a lone judge voted against it.
Denver prosecutors quickly filed motions objecting to any testimony from jurors or community leaders, arguing that it was "irrelevant."
"These people are citizens who willingly served as jurors in a very difficult case and sifted through hours and hours of evidence and testimony," countered Don Bounds, president of Coloradans Against the Death Penalty. "District Attorney Ritter is effectively telling them that their opinion about such a literally life-and-death issue as the appropriate sentence doesn't matter.
"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.
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.
Phil Brimmer handled this argument for the prosecution, recounting once more Peyton's torment, which he contended could have lasted as long as half an hour, maybe more. It had taken time to attack her, time to tie her up and go to her car, time to resume the attack, time to rape her over and over.
As he spoke, both Pat and Steve Tuthill left the courtroom, overcome by emotion.
Canney countered Brimmer's argument with the contention that abuse, neglect and brain damage had left Page mentally unable to obey the law. "How do you weigh all this?" he said. "I don't know. How do you weigh the horror here with the horror there?"
The judges soon let him know: "The panel unanimously concludes that no amount of horror from the defendant's childhood, even when combined with the other mitigating factors, can outweigh the horror of what the defendant did to Peyton Tuthill and those who loved her."
Unanimously -- as they had to be in order to proceed -- the judges said they were "convinced beyond a reasonable doubt that the aggravating factors outweigh the mitigating factors. Therefore the defendant's crime makes him eligible for the death penalty." There was only one more step to take.
But before hearing closing arguments, the panel listened to the victim's family. The defense attorneys had tried to prevent this, too, arguing that testimony from Peyton's family members might unfairly influence the judges. But the defense lost that motion, and now it was Pat Tuthill's turn to speak.
Dressed in black, she carried a vase filled with daisies, the photographs of Peyton, and a small urn. It seemed to take forever to reach the witness stand. And once she got there, she didn't sit down. Instead, Pat stood for more than two hours, fighting her way through tears to tell the judges about her daughter -- about Peyton's giving nature, her love and her dreams -- and how she now had to live with guilt and overwhelming grief. She had promised to keep her daughter safe. "I dream of Peyton dying, and I'm not able to save her," she said.
When at last she stepped down from the witness stand, Pat looked Donta Page in the eyes for the first time. Those are the eyes Peyton had to look into when she was begging for her life, she thought. The last eyes she saw as she lay dying. Pat looked hard and saw...nothing.
When it came time for Page to make the killer's traditional apology, Canney read it for him. The defense attorney truly believed that Peyton's murder wasn't the sort of calculated crime committed by others on death row. And so he read from the heart:
"To the Tuthill family, I am sorry. I'm sorry for your unmeasurable loss...As I see Ms. Tuthill's mother and how hurt she is, no words come. There are no words in this world that can express the amount of pain that has been brought to your lives, no words that can ever undo the past...I hope in time I can be forgiven by everyone. But I don't think I can ever forgive myself."
The apology was not accepted.
On March 2, the judges returned with their decision. They called Donta Page's crime "vile" and "repugnant" -- but they also spared his life.
All three had voted against the death penalty, although for different reasons. Judges Meyer and Anderson bought into the defense's proportionality review, or, as they wrote in their opinion, the "particularized circumstances of this case against the background of historical antecedents reflecting evolving standards of decency in the Colorado community."
They noted that historically, the death penalty had been "imposed with infrequency and reserved for the most extreme cases." In order to define "more precisely the context of community values in which this case has arisen, the sentencing panel has considered certain evidence as to the nature of this crime and this defendant in comparison to other crimes resulting in imposition of the death penalty in Colorado." And as a result of this review, they had determined that "imposing the death penalty on Donta Page would lower the bar for executions in the State of Colorado.
"This murder was preceded by no premeditation," they stated. Page had not pre-selected Peyton or waited for his victim. He "engaged in no preparation for or planning of the murder. Though he armed himself with a knife when he first entered the house, it was not at that time with the specific intent to commit a murder." And when he was "surprised" by Peyton's appearance, he "reacted instinctively," they wrote.
Page's actions, they said, "differed significantly from Frank Rodriguez's kidnapping of Lorraine Martelli; Robert Harlan's pursuit and abduction of Rhonda Maloney; Nathan Dunlap's revenge plan against his former co-employees at Chuck E Cheese's restaurant; Gary Davis' predatory pursuit and kidnapping of Virginia May; Francisco Martinez's torture and murder of Brandaline Duvall; George Woldt's stalking and kidnapping of Jacine Gielinski; and William Neal's calculating, ruthless planning and execution of Rebecca Holberton, Candace Walters and Angela Fite...None of these cases is characterized by the impetuous, precipitate and opportunistic manner in which Page attacked Tuthill."
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."
But still, Jackson confessed, he "hesitated on the brink of casting that vote, not because of any one mitigating factor, but because of the combination of those factors." Therefore, he had voted against the death penalty.
"There will be those who, understandably, will be frustrated by the outcome," he acknowledged. "At least this decision should bring the case to an end...I hope the end of the case will bring Peyton's family and friends some measure of peace and closure. The penalty we impose today is very severe and in some ways even worse than death."
The judges' decision did not bring peace to the friends and family of Peyton Tuthill.
"Who our daughter was did not seem very important in court," Pat Tuthill said.
Steve Tuthill called the judges' decision as "cowardly" as Donta Page's crimes against his daughter. "It was a travesty of justice," he told the Denver Post. "This beautiful child wasn't murdered, she was slaughtered."
The night the judges issued their verdict, Jim Castle and his wife attended a candlelight vigil on the grounds of the State Capitol. The trial and hearing had been every bit as bad as Castle had expected them to be -- maybe worse. So when Coloradans Against the Death Penalty had called to ask if he minded if they scheduled a vigil for after the sentencing, he gave his okay, on one condition: "that the vigil be for the life of Donta Page and an end to capital punishment, but also to pray for the victim and the family of the victim, Peyton Tuthill." He reiterated those words at the vigil.
"All of us here have something in common," Castle said. "We detest and believe immoral the death penalty. But we need to ask ourselves why our country strives for the death penalty. What need does it fill? It fills the need to do something about crime and the agony of the victims. So unless we address that problem, we will always have a death penalty."
But a newspaper picture the next day of Castle's wife, in tears, cast the vigil in a different light for Pat Tuthill.
Where are the tears for Peyton? she wondered. And her curiosity grew as she read that the gathering had turned into a rally against the impending execution of Timothy McVeigh, who'd killed 168 men, women and children when he set off a bomb in Oklahoma City. She noticed that Robert Welch, whose daughter had died in the bombing, had appeared at the rally; Welch had been in favor of the death penalty until he met McVeigh's father and had a change of heart.
Pat wasn't sure how she felt about the death penalty. "But one thing happened to me," she told the Post, "and it has committed me more than ever to redefining 'heinous' for our society...I will still continue to fight for her and fight for justice throughout this country."
In the days that followed, the judges' decision inspired yet another death-penalty debate at the legislature. They had done what no jury had ever done, what no jury could have done -- and that was create a ranking of murderers.
Defense lawyers, who'd complained in 1995 when the death-penalty decision was taken away from juries, now praised these judges. "I think they have given us a road map for how to search for justice in a death-penalty case," Larry Pozner told the Post. "These judges have come up with the mechanism, the procedure. They have given us the book on what to do if you want to try to figure out who is going to be executed and who is going to go to prison for life."
District attorneys, however, slammed the judges' procedure as nothing more than smoke and mirrors, with no legal basis. Even prosecutor turned defense lawyer Craig Silverman said the decision set a "disastrous precedent...in effect, [prosecutors] will be trying seven or eight cases at the same time."
Adams County District Attorney Bob Grant complained that the danger of proportionality reviews was that only "twins" of the type of cases already on death row stood a chance of adding to the inmates there. "It would completely eviscerate the law," he said.
According to Denver DA Bill Ritter, in most "weighing" states with a death-penalty statute, where the aggravators must outweigh the mitigators, Page would have been sentenced to death. Still, he said he didn't feel that the Page decision would be as far-reaching as defense lawyers hoped or his district-attorney colleagues feared. After all, Meyer and Anderson had said that a proportionality review, while permitted, was not mandatory, and Jackson hadn't determined that Page fell "below the bar" separating the men on death row from other killers. Other prosecutors pinned their hopes on a higher court banning proportionality reviews.
But state senator Ken Chlouber, a Republican from Leadville, wasn't taking any chances. Shortly after Page's sentencing, he introduced a bill that would change Colorado's death-penalty system, replacing the three-judge panel with a single judge, the trial judge.
Chlouber was more familiar with the death penalty than most lawmakers, having recently witnessed the Kansas execution of his elderly aunt's killer. And he was "disgusted" with the panel's decision to spare Page's life. "The public was outraged, and that's an understatement," he said. "There's nothing I can do about that case, but we can do something about the next trial."
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.
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.
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.
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.
Jefferson County Chief Deputy District Attorney Mark Pautler found himself in court this spring, answering charges about his role in the Cody Neal case. "I'm quite comfortable with what I did that night," he said, referring to his decision to pose as a public defender in a phone conversation with Neal. "What I did that night I did to save lives and take a killer off the streets." But the state supreme court's disciplinary committee ruled that Pautler had committed misconduct by engaging in "intentional deception," a violation of the ethical rules for attorneys.
Angela Fite's mother, Betty Von Tersch, sat in on two days of the hearing but wasn't called to testify. "Mark Pautler is a hero," she says. "Who knows what Neal would have done if Pautler had not talked him into surrendering? What would the public defenders be saying if Neal had gone on to kill some other innocent person?"
Pautler has appealed the committee's censure, which put him on probation for a year. Meanwhile, William Neal still doesn't want his lawyers -- even though they're trying to set up another competency hearing for him.
"Closure" may be the most overused word in death-penalty circles -- particularly because there is no such thing as closure, not in this lifetime. Steve Bernard likens the repercussions of a murder "to a boulder thrown in a lake, except the ripples go on and on. These families never get over a murder."
Peggy Luiszer hates the word. "There will be closure when I am dead," she says. Four years after her daughter died, she's still unable to return to work; she'd like to go, but it will take an understanding employer to recognize that there are mornings when she'll wake up and know she'll spend the day in tears. She has lost her tolerance for people who whine about how tough things are for them: "Tough is having your daughter raped, tortured and murdered."
There's been no closure for Kerri Gemeinhardt, the sister of Rhonda Maloney. "I miss her every day," she says, seven years after Rhonda's murder. Their mother died shortly after Robert Harlan's sentencing, and while she had been in poor health before Rhonda's death, "I'm sure this is what killed her," Gemeinhardt says. "She never got over it." And although watching Harlan's execution won't bring closure, she notes, "there will be justice."
The families of the killers suffer as well. Not only do they become pariahs in their communities -- guilt by association -- but they must wrestle with the love they feel for someone who has committed such a heinous crime.
Theresa Swinton, the mother of Danny Martinez, attends anti-death-penalty rallies, often with Pancho Martinez's mother. They also see each other on visits to the prison -- although Pancho is on death row and Danny is not. "Those who want the death penalty quote scriptures that say 'an eye for an eye,' but they don't talk about 'Vengeance is mine,'" Swinton says. "I am on my knees every morning. I pray for Brandy and her mother. But I also pray that God will touch this situation and change our society and take away this evil and the anger.
"The system is so fallible. It is riddled with mistakes and injustice. I pray the families on both sides will feel forgiveness, understanding and compassion."
Virginia May's killer, Gary Davis, was executed almost four years ago. But time does not heal all wounds, according to Ginny's father, Rod MacLennan. "It comes and goes," he says. "But the fact that he is dead means I don't have to think about him anymore. People don't ask me about him as much.
"So if not having to think about him sitting over there in the penitentiary is closure, then I guess the death penalty brings closure."
For Pat Tuthill, there is no relief. Few days go by when she doesn't think about Donta Page and what he did to her daughter. It never ends. She'll lose herself in her work or her cause, and then she'll get a call from a reporter or a package from the DA's office, and she'll remember. Everything.
Still, there are moments of poignancy, if not joy. On a recent shopping trip, Peyton's sister picked up a doormat that featured several frogs. "I just love frogs," Cara told her mother. "I wonder why? Guess I'm still looking for my prince." Both laughed as they recalled the time Peyton made her sister kiss a dead frog.
But that was so long ago; these past two years have been a blur. Before Peyton was murdered, Pat was a successful, well-organized professional. Now she forgets to eat. She runs stop signs and red lights without realizing it. She has to work hard not to lose her compassion for people. She's lost her faith in the system, but since it's the only one we have, she's trying to change it.
Pat recently visited a Florida correctional facility for violent youth offenders. She was afraid when she saw them, afraid to look into the faces of young men, some of them barely teenagers, accused of rape and assault. She was afraid, but she grew stronger as she described what had happened to Peyton...and what had happened to Donta Page. Two young people lost their lives that day, she told them.
She asked them to think about the one person in the world they cared most about, and how they would feel if what happened to Peyton happened to that person. Or how that person would feel if the young men ended up like Donta Page. She told them about her journal, in which she writes to Peyton every day. When she was finished talking, she went to each of them and shook his hand.
Pat left the room wondering if they'd really heard her. And then the young men walked out for a break. One by one, each raised a hand and waved. "Be careful," they said. "Thank you."
That night, Pat told Peyton about the young men. Maybe she'd accomplished something, she wrote. Even if she reached just one person and spared just one family the grief Peyton's family had endured, then it was worth the fear and heartache.
Ending the entry, she signed that night's message as she always did, keeping the promise she'd made 26 years before: "I love you...forever and ever."
Read all the stories in this series at our Penalty Zone website.