A Fight to the Death

Last week Karen Bowers wrote about the capital murder case of Jon Morris, a crack addict and small-time hood who prosecutors say savagely raped and killed five-year-old Ashley Gray. Morris's trial, scheduled to begin March 3, has been postponed until May 19; it's the first of what are likely to be many delays in his trip through the criminal justice system. In this second part of a special Westword series on Denver's capital crimes, Bowers examines Denver's other death-penalty case, that of notorious rapist and murderer Frank Rodriguez. Rodriguez's case has now dragged on for more than twelve years and appears certain to languish for several more: The convicted killer just began his federal appeals process late last year, and, as Bowers reports, his latest defense attorney recently resurrected a previously unsuccessful life-saving strategy: claims of childhood abuse. The twists and turns of the Rodriguez case illustrate the tortuous legal process involved in putting a person to death. Should Morris be convicted, they may also serve as a preview of what lies in store in Denver's newest capital case.

Antoinette Massimino doesn't expect Frank Rodriguez to be executed anytime soon. Maybe, she says, it won't even happen in her lifetime. But if it does, she is prepared to sit on the other side of a plate-glass window and watch him die.

Vengeance, Massimino says, has little to do with her willingness to see the sentence carried out. To her, the death penalty is no more and no less than the just reward for the man who kidnapped, tortured, raped and killed her sister, Lorraine Martelli, in November 1984. A jury decided his fate, she says, and it is the state's duty to carry it out.

"It's not that I've lost faith in the system," says Massimino, who once worked as a clerk for the civil court in Denver. But each time she learns about another delay in the case or a proposed change in Colorado's death-penalty law, she feels justice slipping away.

Massimino searches for compassion and understanding for the defense attorneys who have fought to keep Rodriguez alive since his 1986 conviction for first-degree murder. "They really think they're doing the right thing," Massimino says. "But maybe they go over the line. Maybe they take it farther than they have to, because they're the ones that make the process so long. I guess they feel they're right. It's just that it seems like it's a personal crusade."

It is a crusade. Defense attorneys fight capital punishment like a religious war, even employing the language of true believers. "For me," says Denver public defender Mike Heher, "I don't believe that the best way for society to go is to have the government exacting blood vengeance."

To Denver defense attorney David Lane, the death penalty is a symptom of a great evil. "The greatest threat to survival is the cheapening of human lives," says Lane. "Until we as a species take a position that death is not an acceptable solution to social problems, we will continue to have wars and to sit idly by as millions of people starve."

But in Colorado, people like Heher and Lane are proselytizing to the heathens. The state's residents have shown repeatedly in opinion polls and at the ballot box an overwhelming support for capital punishment.

The schism between the two viewpoints has resulted in an expensive and absurd game of tag in which taxpayers are perpetually "it." Even now, as state legislators work on a bill to shorten the appeals process for condemned prisoners, state-paid defense attorneys are fighting with state-paid prosecutors in an attempt to overturn the Rodriguez verdict--and, in the case of new death-penalty defendant Jon Morris, to emasculate existing state laws governing capital punishment.

But time, money, logic and even questions of guilt hold no place of importance in anti-death-penalty dogma. To disciples, there is simply too much at stake to give in. "I'm not a big fan of strapping people down and killing them," says Heher. "And I couldn't care less, in terms of having [Rodriguez] executed, whether he did it or not."

Lane, a private attorney appointed by the federal court to handle Rodriguez's federal writ of habeus corpus, has vowed to continue the fight for Rodriguez's life even though he concedes his client's participation in Martelli's murder, even though he agrees with Massimino that the world is a safer place with Rodriguez behind bars--and even though Rodriguez himself is sometimes unsure whether or not he wants to live.

In a footnote to a federal petition submitted January 24, Lane wrote, "In all honesty...Frank Rodriguez is not at all certain that he wants to avoid the death penalty. He is generally so depressed that one aspect of [my] job is to motivate him to fight for his life."

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Karen Bowers

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