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."
"People don't view Frank Rodriguez as a human being," says Lane, and his complaint is more than just lawyerly hyperbole. For many Coloradans, any thoughts of Rodriguez as a person with human emotions were erased during the murder trials of Frank and his younger brother and accomplice, Chris, when descriptions of the depraved attack on Lorraine Martelli were made public.
At the age of 54, Martelli was an exemplar of the term "spinster." A deeply religious woman from an old Italian family in north Denver, she worked as a bookkeeper and lived with her 87-year-old mother. Martelli's life, says her sister, revolved around her family, her job at a Denver glass company, and the Catholic church. There was nothing else.
November 14, 1984, was a busy day at the House of Glass at Fifth Avenue and Broadway, and co-workers say Martelli was happy to see quitting time roll around. It was about 4 p.m. and still light when she left the office to walk to her faded 1975 Monte Carlo, which she'd parked in a nearby lot.
The Rodriguez boys, who'd been looking for cars to steal, spotted Martelli as she took a shortcut through an alley to her car. They jumped her just as she reached the Chevy.
A witness testified at trial that Martelli struggled with the two men before being forced into the car. Her eyeglasses were broken in the scuffle. The vehicle then careened down an alley and struck a parked car as Martelli frantically honked the horn for attention, the witness said. But the Monte Carlo and the brothers were gone before police were able to get to the scene.
Officers throughout the city were told to watch for Martelli's car. When they found it less than six hours later, she was already dead.
The story of what happened that day was revealed in court by Patricia Thomas, a teenage acquaintance of the brothers. Thomas and her 23-year-old boyfriend, David Martinez, had been acting as lookouts for the Rodriguezes that day, watching for cops while Frank and Chris prowled cars. After kidnapping Martelli, the brothers swung the car around and picked up Thomas (then seventeen) and Martinez.
Using money they took from Martelli, the group stopped at a housing project in southwest Denver to buy drugs. After the deal was done, Thomas and Martinez piled into the front seat. Frank then piloted the car west on Sixth Avenue, toward the mountains, as Chris raped Martelli in the backseat.
Once in Golden, the group decided to turn around and head back to Denver. Frank parked the car in a warehouse area near the South Platte River, then took Chris's place in the backseat so that he, too, could sexually assault the terrified woman.
When Chris complained to his brother that he was "taking too long" with Martelli, Frank slugged Chris in the face. The physical altercation was soon followed by a verbal one--Frank allegedly wanted to kill Martelli because "she seen our faces." Chris Rodriguez, Thomas said, didn't want the woman dead.
Frank Rodriguez had what in his mind was a solid reason for killing Martelli. The last time he and his brother kidnapped and raped a woman, she had lived to tell authorities. The two had spent six years in prison for that crime. Frank was paroled in April 1984. Chris got out in September, less than two months before the attack on Martelli.
Frank won the argument.
With tears running down her cheeks, Thomas told a hushed courtroom that when Martelli pleaded for her life, Frank, who had a knife, screamed at her and called her "stupid." Then Martelli began to pray and, Thomas testified, "I could feel the pounding. I could feel the seat move." Martelli was stabbed 28 times. During the attack, she reportedly cried, "God help me, I'm dying." The doctor who performed the autopsy would later testify that he believed Martelli had been tortured before she was killed. Someone, he said, had run the blade of a knife across her throat before stabbing her.
When Frank was finished, he, his brother and Martinez stuffed Martelli's body in the trunk of the car. Then they drove over to a friend's apartment to party. It was about 6:30 in the evening. They used Martelli's money to buy beer and burgers later that night, and Frank gave the murder weapon to his friend's two-year-old boy to play with.
Police caught up with Frank about 9:30 that night, when he took the Monte Carlo out to buy more beer. Martelli's body was still in the trunk.
The legal battle in the Martelli case began even before the Rodriguez brothers went on trial.
Frank's case was delayed for almost a year due to wrangling over which lawyers would represent him at trial. According to Heher, Denver District Judge Lynne Hufnagel "arbitrarily" decided that the public defender's office had a conflict of interest and ordered its attorneys thrown off the case. Actually, Hufnagel's ruling was more than simple caprice. Unknown to the public defenders at the time, the prosecution was cutting a secret deal with Rodriguez's girlfriend, Margie Marquez, to testify against him--and the public defenders were representing Marquez in another matter. The office, however, protested Hufnagel's decision all the way to the Colorado Supreme Court and eventually won the right to represent Frank.
Before that issue was settled, Chris went on trial. Armed with damning physical evidence--one of Chris's pubic hairs was found on Martelli's body--prosecutors with the Denver District Attorney's office had decided to seek death for the Rodriguez boys. Thomas had also agreed to testify for the prosecution after being offered immunity. Martinez didn't testify but was given a plea bargain under which he received a twenty-year sentence. He was paroled in January 1995, and with the exception of a DUI arrest in Wheat Ridge two months ago, has apparently managed to stay out of trouble.
In December 1985 a jury found Chris guilty of kidnapping, rape, robbery and first-degree murder. At the time, state law required that juries in capital cases sit through a second, penalty-phase trial to determine whether the defendant should live or die. The verdict had to be unanimous for a convicted killer to be put to death. (Under a state law passed in 1995, a three-judge panel now decides the defendant's fate in capital cases.)
In arguing that the life of his client should be spared, defense attorney Ken Gordon, now a state representative from Denver, said it was "undisputed" that Frank was the one who'd actually wielded the knife and killed Martelli. The jury split on the death penalty: reportedly, ten jurors voted for death, but the other two held out, sparing Chris's life. He was sentenced to life in prison plus 64 years. In practical terms, that means he could be released when he is 77 years old.
Frank Rodriguez went to trial almost exactly one year later, in December 1986. The public defender's office came into the case with a long track record of keeping clients from the gas chamber. Its attorneys also had plenty of ammunition against star prosecution witness Patricia Thomas, who, they claimed, had lied about the identity of the murderer in order to protect her boyfriend, David Martinez.
But the defense also faced what would prove to be an insurmountable obstacle: Frank's letters to Margie Marquez, in which he admitted to killing Martelli.
Prosecutors introduced at trial a letter Frank wrote to Marquez. "I had to kill her," he wrote in the letter, mailed from the Denver County Jail and riddled with grammatical errors. "If I wouldn't have killed her, she would of pick my picture out of the mug book's from the cop's.
"The only reson I'am sorry now," Frank continued, "is because the hurt I have done to you. I do'nt care about Martelli or her people but I do care about what you think about me. I love you women and do'nt want to loss you over some white people."
Frank's attorneys argued that the letter was a ploy--that even though he hadn't been convicted at the time, Frank had made the confession with the full understanding that his girlfriend would pass it on to authorities. The idea, the attorneys argued, was to give Marquez a bargaining chip she could use to get out of jail on a shoplifting charge.
The defense never fully explained why someone as streetwise as Frank Rodriguez would put his life in jeopardy as part of a scheme to spring another person--girlfriend or not--on a shoplifting charge. And prosecutors Mike Little and Craig Silverman seized on the letters, using them to demonstrate what they referred to as Rodriguez's "totally unrepentant" attitude.
After just four hours of deliberation, the jury found Frank guilty on all counts, a legal fusillade that included first-degree murder, first-degree felony murder, first-degree sexual assault, aggravated motor-vehicle theft, second-degree kidnapping, aggravated robbery, conspiracy to commit second-degree kidnapping and conspiracy to commit car theft. In a separate proceeding, the jury also found him guilty of being a habitual criminal.
During the penalty phase that followed, the prosecution called to the witness stand the woman who'd been raped by the Rodriguez brothers in 1978 and whose testimony had sent them to prison. Additional chilling information was provided by George Stapleton, who told jurors that just ten days before Martelli was killed, Frank shot him four times during an attempted robbery.
As part of their argument, Frank's attorneys introduced into evidence a document they'd titled "The Life History of Frank Rodriguez." Compiled by an investigator with the public defender's office and composed largely of mate-rial gleaned from the Department of Corrections, the Denver Department of Social Services and the state parole board, it didn't exactly show their client in the best light, referring frequently to his lengthy criminal history.
Defense attorney David Lane now argues that "the defense case at the penalty phase was breathtaking in its inadequacy." In fact, prosecutor Silverman was able to turn the "Life History" into a condemnation of Frank Rodriguez during the prosecution's closing argument.
"We have read the book of 'The Life of Frank Rodriguez,'" Silverman told the jury. "The People submit it's a book of murder and cold-blooded violence against completely innocent citizens of Denver. The book goes on for year after year. The book never gets better; [it is] more and more of the same thing, chapter after chapter, and despite society's efforts, it just keeps getting worse.
"It's the sort of book where, once you read enough, you get sick of it," Silverman continued. "Let's make sure this is the final chapter, ladies and gentlemen. Let's close the book on Frank Rodriguez. Return a verdict of death."
It took only six hours for the jury to conclude that Frank Rodriguez deserved to die in the gas chamber. When the verdict was read, Martelli's family--her brother, Jim, and her two sisters, Antoinette Massimino and Virginia Ross--cried and embraced. Courtroom reporters claimed that Frank showed no emotion. But as his mother, Gloria Rodriguez, turned to leave the courtroom, Frank smiled and winked at her. "I love you, Mom," he said.
Frank's cool reaction to the death verdict stood in stark contrast to that of his trial attorneys, David Eisner and Robin Desmond. "Robin and I were so emotionally wrecked that it's hard to say what his reaction was," says Eisner, who now heads up the public defender's office in Grand Junction.
"It was very overwhelming," Eisner adds. "It was a long trial, and it was physically and emotionally draining." But the verdict itself came as no surprise, he says. "The atmosphere of hate" exhibited in Denver District Judge Connie Peterson's courtroom, he claims, suggested that the death penalty was a foregone conclusion. "The entire environment was pretty ugly," says Eisner. "We felt there was a lot of injustice in the way the trial was conducted."
Eisner says it took him months to recover from the ordeal. He quit his job with the public defender's office a short time after the trial ended--not because he'd lost, he says, but because he wanted to spend more time with his family. (He rejoined the public defender's office in July 1993.)
Eisner's role in the case was mostly over when the jury came back. "Once Frank got the death penalty," says public defender and appellate attorney Mike Heher, "it was pretty much my case."
And in many ways, the Rodriguez case was just beginning. The average length of time condemned prisoners spend on death row in this country is ten years. Eisner says he figured Rodriguez's appeals would last at least that long. He was right.
Death-penalty cases are automatically sent to the Colorado Supreme Court for review, but it took more than three years for the high court to rule on Rodriguez's conviction. In a blistering editorial written in 1994, former governor Richard Lamm blamed the delay on the defense's stalling tactics and on the "inexcusable actions" (in allowing the delays) by the court, whose judges were "deeply divided" over the death penalty. Finally, in 1990, the court voted 4-3 to uphold Rodriguez's sentence.
But that automatic review was just one of many avenues of appeal available to the defense, and Heher made use of all of them. After Heher failed to convince the state Supreme Court to overturn Rodriguez's death sentence, he appealed to the U.S. Supreme Court, which declined to take the case. Heher then asked the Denver trial court for post-conviction relief, a request that resulted in the dismissal of three of the eight charges but did nothing to deter his client's date with death.
From there, Rodriguez's case bounced back and forth from the district court to the state Supreme Court several times. It was assigned to and then lobbed back from judge after judge as Heher raised issues relating to jury instructions and voir dire and pushed for the case to be transferred to a different judicial district.
In 1994 Heher asked for a new trial for his client based on the discovery of "new evidence": Chris Rodriguez, after exhausting all of his own appeals, came forward to claim that he and David Martinez, not Frank, had murdered Martelli. Chris had little to lose from the confession: He'd already been convicted of first-degree murder, and double jeopardy prevented him from facing execution. But he proved to have a highly selective memory about the murder and came into a hearing on the issue saddled with a reputation as a notorious and unreliable prison snitch. Heher lost his bid for a new trial.
The fight to save Frank Rodriguez had always been marked by tension between the defense attorneys and the other players in the drama. It got downright personal when Heher began attacking the character and credibility of the prosecutors, Judge Peterson, the court clerks and the court reporter.
Over the years, Heher has charged that Peterson and her staff have destroyed documents that would have been helpful to his client. "The transcripts and the pleadings are a disaster and have been from the beginning," he says today. "Peterson disposed of 200 to 300 jury questionnaires. Exhibits, affidavits and the jury instructions are missing." Heher claims that "months and months" were wasted because the court clerk's office couldn't find mountains of documents related to the case. He says he's the one who ultimately found them--on a table in the clerk's office, where they'd been sitting the whole time.
"How does a district court lose boxes and boxes of material in a death-penalty case?" asks Heher, still irritated ten years later. "Judge Peterson's staff refused even to talk with us about it." Peterson's staff may have had their reasons for keeping their distance: Almost from the beginning of the appeals process, Heher has accused Peterson of unethical behavior.
One of the most bitter battles of the Rodriguez case has revolved around a defense claim that Judge Peterson lashed out at David Eisner during a critical moment in the trial. Heher, Eisner and several others who were in the courtroom during Silverman's closing arguments in the penalty phase say that Peterson became so impatient with Eisner's near-constant objections that she told him to "shut up and sit down." Making such a statement in front of a jury is deadly to an attorney, Heher says, and he complained about the judge's alleged comment in one of his motions.
However, the official transcript of the proceeding shows that Peterson never made the remark, and the judge took offense at Heher's contentions. She filed a formal grievance against him with the state Supreme Court, accusing him of lying. No action was ever taken on the grievance, but to this day Peterson refers to Heher's allegations as "a lie."
"I am not going to say that in a death-penalty case," she says. "That's stupid. I've never said anything like that to any counsel."
Silverman, too, remains angry at what he refers to as the defense counsel's "unconscionable" accusations against Peterson. "They adopted a strategy of accusing Judge Peterson of this," he says, "and to some extent, it worked. She grieved that and then recused herself from the case. Then they shuffled it from courtroom to courtroom and judge to judge, delaying the case several years."
The defense team's ability to stall has won the grudging respect of Silverman, who left the district attorney's office to launch an ultimately unsuccessful run for DA and is now in private practice. "They do everything in their power to keep Frank Rodriguez from being executed," he says. "And I admire their tenacity, even if I don't admire their tactics."
Rodriguez finally exhausted his appeals in the state courts last year. In November defense attorneys took his case to U.S. District Court to begin a final round of appeals. Silverman says he thinks it could be another five years before Rodriguez is executed.
Lane, a veteran defense attorney, was assigned to the federal case and has continued the personal attacks on the prosecution. "Chief Deputy District Attorneys Little and Silverman cared only for one end--a death sentence for Mr. Rodriguez," Lane wrote in a petition filed January 24. "The Rules of Criminal Procedure, the Code of Professional Responsibility, and our Constitution were but nagging obstacles [to them]."
In addition to trotting out those arguments, Lane has another strategy he hopes will save Rodriguez's life: raising the claim that Rodriguez was an abused child and therefore is not entirely responsible for his actions.
The notion that people's childhoods can serve as mitigating factors for their criminal behavior as adults is a common and frequently successful tactic in felony cases. After Kevin Fears was convicted of shooting three men execution-style in Denver's Bonnie Brae witness killings of 1989, public defenders regaled jurors with stories of the childhood abuse allegedly suffered by the double murderer (one of whose intended victims survived by playing dead). By the time the defense was finished, jurors were weeping in the jury box. Fears avoided the death penalty.
Lane's strategy is based on a nearly identical claim. Early in the case, he now says, the public defender's office erred by not probing deeply enough into Rodriguez's background. That blunder, he adds, means Rodriguez received ineffective counsel, which in turn means the death penalty should be vacated. Lane is righteously indignant that Rodriguez's early attorneys didn't make it absolutely clear to their client why they wanted to know about his childhood.
"Robin Desmond asked Frank just one time if he'd ever been abused as a child," Lane says. Frank responded in the negative, and Desmond dropped the subject. A single inquiry by a defense investigator ended with the same response. "There was no meaningful attempt to explain to Frank why they were asking this," Lane says.
The state district court and the Colorado Supreme Court threw out similar arguments made by private attorney Richard Hostetler in 1993. (Hostetler had been appointed by the court to present evidence supporting Rodriguez's claim of ineffective assistance of counsel. The public defender's office handled all other claims.) Lane, however, says the state's court erred when it ruled that it was Rodriguez's fault that his background was never presented to a jury.
In his January 24 petition to the federal court, Lane laid bare the details of Rodriguez's allegedly hellish formative years, adding that it is nearly impossible to do so "in a way which would convey to this Court how the torment and torture he lived through as a child have shaped his very being."
Though Rodriguez initially told Desmond and her investigator he'd never been abused as a child, he now seems to have discovered a new set of memories. Lane wrote in his petition that when he speaks to Rodriguez today about his childhood, his client "begins to tremble. Discussing his family life brings on severe headaches in Frank. When he recalls his father, he literally shakes and pales."
Rodriguez's father, Frank Rodriguez Sr., was a career burglar who was in and out of prison as his four children were growing up. According to Lane, he was also a drug addict and a drunk who was behind bars for the births of all his children except Chris, the youngest.
Frank Sr. was a violent man, Lane wrote in his petition to the court, and "during his rages, any and all family members had their very lives hanging by a thread."
"Frank Sr. would often start by grabbing his weapon of choice--a very large, very sharp, very dangerous machete," Lane wrote. "He would grab Frank Jr., Chris, or their mother and hold the machete to their throats, calling them vile names while threatening them with death." Then he'd allegedly put down the machete and pummel his wife with his fists.
One night, when the boys were about ten, Lane wrote, Frank and Chris tried to protect their mother from Frank Sr. by grabbing kitchen knives and threatening their old man. Frank Sr. laughed at the impudence of the "frightened, skinny boys," Lane wrote. Then Frank Sr. allegedly turned on his namesake and hit the boy so hard that "Frank's nose to this day carries the crooked reminder of that blow." As if that weren't enough, Frank Sr. then supposedly made the boys stand in the bathtub, which was part of a cruel ritual. He'd put them in the tub, Lane wrote, because he didn't want them to bleed all over the apartment after he'd whip them with cords.
And Lane's claims of abuse don't stop at beatings and threats. The attorney makes even more disturbing allegations, claiming that Frank Sr. raped Frank Jr. and Chris on numerous occasions and that by the time Frank Jr. was eight or nine, his father had injected the boy with heroin and recruited him and Chris to act as lookouts when he committed burglaries.
The boys hated and feared their father so much, Lane wrote in his petition, that "they would lie in bed at night fervently praying to Jesus" that their father would die, that he'd be struck by a bus or shot or that "some divine intervention would occur and their lives would no longer be an unimaginable nightmare."
Lane claims that Frank Jr.'s only protector at the time, and the only person he cared about, was his mother, Gloria. Frank Sr. managed to destroy that source of comfort, too. "Frank Sr. would begin to beat his wife, who would then beg for mercy," Lane writes. "Mercy was frequently given to her, but only at a cost. The cost of mercy was that she would be ordered by Frank Sr. to commence beating Frank Jr.
"In order to spare herself, Frank's mother would rain blows down on Frank with belts, electrical cords, or whatever was at hand. If she didn't beat Frank hard enough, she would be beaten harder. Frank could not understand, or stand the fact, that the one protector he had in the world would not or could not protect him from an existence of the rawest brutality imaginable."
Because of this horrific mistreatment, Lane claimed in his petition, Frank Jr. grew up with a terrible rage. And on November 14, 1984, Lane told the court, that rage exploded. Lorraine Martelli, he wrote, "was the completely innocent victim of a lifetime fireball of rage" that had been bottled up in Frank Rodriguez. "It exploded in a frenzy which Frank Rodriguez to this day cannot explain," wrote the attorney. "He does not know how or why it happened. He simply recalls a feeling of absolutely overpowering anger and rage, the likes of which he had not previously felt."
Lane's argument doesn't address the fact that during his allegedly overpowering rage directed at Martelli, Frank remained coherent enough to make the very logical argument that she needed to be killed to keep her from talking. And judging from the lengthy rap sheet Rodriguez had compiled before the attack on Martelli, rages were not an anomaly for him.
However, Lane argues that if Frank's public defenders had told a similar story to the jury in the murder trial, jurors may have been moved to spare his life. When jurors recalled Frank threatening Lorraine Martelli with a knife and calling her stupid, Lane suggests, that memory would have been overlaid by the imagery of Frank cowering from his father's cruel taunts and being threatened by a machete.
Lane says his version of Rodriguez's childhood has been largely verified by Frank's other brother, Kenny, who still lives in the Denver area. But Rodriguez's parents, both of whom died after he was on death row, never came forward with accounts of abuse. Nor did Chris bring up abuse as a mitigating factor in his own case.
Lane is aware that his arguments may be regarded dubiously by the public and the courts. "The knee-jerk response to this may well be, 'Oh sure, he's the source of this information and he's simply conning people into believing this stuff,'" the attorney wrote in a footnote to the habeus corpus petition. Lane, though, says he believes it.
And Silverman believes it to a certain extent, too. "Did his upbringing screw him up?" Silverman asks. "I'm sure it did. But Frank Rodriguez was well into his thirties, and he'd been in prison several times [prior to murdering Martelli]. He was very far removed from his upbringing."
Public sentiment about the death penalty hasn't changed much in the years since Frank Rodriguez was first sentenced to die. The public still approves of it, and elected officials still use it as a political tool. But as fear of crime has increased and public indignation has risen over the lengthy delays that characterize capital cases, new life has been breathed into the debate over capital punishment. And the posturing and legal maneuvering has had a major effect on the administration of capital cases in Colorado.
In 1988 Colorado legislators attempted to strengthen the state's death-penalty laws, making changes that resulted instead in the law being declared unconstitutional. (Lawmakers had changed the language indicating that jurors could impose a death sentence if the aggravating factors outweighed the mitigating factors to language that said jurors had to impose the penalty under those circumstances.) Lawmakers went back to the drawing board in 1991, and the state is now making another effort to rewrite the law, establishing strict deadlines for the filing of appeals.
The biggest change, though, came during the 1995 legislative session, when the legislature decided that, for all crimes committed after July 1 of that year, a three-judge panel, rather than a jury, would decide a defendant's fate in capital cases. The measure, backed by district attorneys from around the state, including Denver DA Bill Ritter, was intended to prevent a single reluctant juror from sparing the life of a convicted killer. The first defendant to be tried under the new statute is Jon Morris, who's slated to go to trial in May for the kidnapping, rape and murder of five-year-old Ashley Gray.
Because Lorraine Martelli's murder occurred when the old laws were in effect, Frank Rodriguez's fate will still be determined by a jury even if a federal judge grants him a new trial. He also won't be affected should lawmakers enact new legislation regarding appeals deadlines. The one alteration that might have some significance for him came in 1988, when the legislature changed the method of execution in Colorado from the gas chamber to lethal injection.
And with regard to the federal appeal, the actions of state prison officials may have more of an impact on Rodriguez's case than the actions of lawmakers. Heher has argued for years that Department of Corrections officials have read his client's legal mail, that they have sometimes refused to allow him to meet with his client, and that on the occasions that he did see Frank, prison guards videotaped the meetings. According to Heher, those actions made it impossible for him to communicate confidentially with his client, rendering his assistance ineffective.
In 1992 Heher filed a lawsuit attacking the state's surveillance tactics. The case was later turned over to ACLU attorney David Miller. On January 17 of this year, Colorado Attorney General Gale Norton admitted that prison officials had in fact taped the meetings between Rodriguez and his attorney as a security measure. She offered to have a judgment entered against the state, which means the ACLU will likely reap about $100,000 in legal fees from the state.
Whether the judgment will affect Rodriguez's criminal appeals is uncertain. Norton says it won't. Lane says that the state's spy tactics may lead to his client's death sentence being overturned. A hearing at which a federal judge will address that and other issues in the Rodriguez case is scheduled for early May.
If Lane is unsuccessful in saving Rodriguez, he is determined that the struggle will not have been in vain. At the very least, he says, he intends to leave a historical record, one that will show future generations exactly what kind of people were being executed in the 1990s. "They will see," he says of future legal scholars, "that death row is the final home for the most horrifically abused children in our society."
Whatever else it may be, Colorado's death row is certainly an exclusive community. No one has been executed in the state since 1967, and only four other men now live there with Rodriguez. His housemates in a special pod at the Colorado State Penitentiary in Canon City include Ronald Lee White, who's been convicted of three murders, one of which involved hacking apart his Pueblo roommate; Robert Harlan, convicted of murdering cocktail waitress Rhonda Maloney and shooting Maloney's would-be rescuer, Good Samaritan Jaquie Creazzo; Gary Lee Davis, who kidnapped, raped and killed a Byers housewife after she refused to become his "sex slave"; and Nathan Dunlap, convicted of slaying four people at a Chuck E Cheese restaurant in Aurora. Of the group, Davis--who joined Rodriguez on death row in 1987--is believed to be closest to exhausting his appeals.
Both Lane and Heher argue that life on death row is punishment enough for anyone. Rodriguez lives in an eight-by-eight-foot cell, Lane says, and gets out for only 45 minutes a day, when he's allowed into the special death-row exercise area, which consists of little more than a chin-up bar.
"When he leaves that cell," Lane says, "two guards are with him at all times. His meals are given to him by sliding them through a slot in the door." But Rodriguez isn't completely cut off from the outside world. While in his cell, he whiles away the hours watching a black-and-white television and listening to a radio.
The many detours in the Rodriguez case have been hard on what remains of Lorraine Martelli's family. Her mother, who was senile when Lorraine died and never knew that her daughter had been murdered, is long dead. Lorraine's sister Virginia Ross died of cancer in 1993.
"Virginia used to mention it a lot that we had to see this thing through," Antoinette Massimino says. "The evidence in this case--he was just caught red-handed. I don't think there's any doubt that he and the others all participated."
Massimino notes that last month the American Bar Association called for a moratorium on the death penalty, claiming that it is applied inconsistently in different states. "They're lawyers," she says. "They represent the law, and the law is the death penalty. Are they going to try to change the law every time to suit each case?"
Massimino says she often wonders whether Frank Rodriguez will get a new trial--or whether a federal court will once again declare the death penalty unconstitutional, as the U.S. Supreme Court did in 1972, forcing states to rewrite their capital statutes. "If that happens," asks Lorraine Martelli's sister, "what purpose was there to go through the trial?
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