Michael Hogue

Judge and Jury

On the dais above a silent Jefferson County courtroom, Judge Frank Plaut cleared his throat. He was well aware that he was about to make Colorado history by handing down the first sentence from a three-judge panel in a death-penalty case. The other judges sat on either side, gazing solemnly at the packed spectator gallery.

The defendant, Robert Lee Riggan Jr., a petty criminal for most of his life, sat at the defense table, staring straight ahead at the judges. Pale, scarred, his hair shorn to a stubble, he'd refused to attend most of his death-penalty hearing, calling Plaut "a motherfucking egomaniac" and telling Judge R. Brooke Jackson, who'd asked why he didn't want to attend, "I've got fifty pounds of shit on my back, and I don't want no part of this garbage. Go ahead, kill me and get it over with...I did not kill that girl, but there's nothin' I can do about it."

The "girl" was 21-year-old Anita Paley, mother of two young daughters, a crack addict who'd turned to prostitution to feed her habit. On May 16, 1997, Riggan had been spotted dragging Paley up a mountain trail. Suffering from a severely fractured skull and brain damage, she'd died the next day. An emergency-room surgeon had also found a deep, three-inch-long cut inside Paley's vagina that had severed a major blood vessel; the physician had testified at Riggan's October 1998 trial that the cut had been made deliberately with a sharp instrument.


Read more Westword coverage of Colorado's death penalty in Penalty Zone

At that trial, Riggan had claimed that Paley had jumped from his van, fracturing her skull in the process. Although he had no explanation for the vaginal wound, his lawyers -- Bob Hartley and Nathan Chambers -- offered the theory that Paley must have been carrying a small container for drugs or money inside her vagina that broke when she struck the ground. The jurors didn't buy that, and they'd convicted Riggan. Still, the defense had won an important point when the jurors hung 8-3 (a twelfth juror had been released because of illness) on the charge of first-degree murder after deliberation and instead found him guilty of first-degree felony murder.

That verdict came almost four years after the Colorado Legislature had changed the death-penalty statute, taking the decision of whether a convicted murderer should be put to death away from jurors and giving it to a panel of judges. Now Riggan was about to find out if those judges would do what Colorado juries had consistently refused to do: sentence a man to die for felony murder.

Until his appointment to the Jeffco bench in September 1996, the 67-year-old Plaut had spent most of his legal career as a civil lawyer. Before the Riggan trial, he had never presided over a first-degree murder case. When the Riggan trial ended with a felony-murder conviction, a computer had selected Judge Jack F. Smith of Arapahoe County and Judge R. Brooke Jackson of Jefferson County at random to sit on the death-penalty panel with Plaut. Smith, age sixty, had been a judge since 1987 and had presided over murder trials, but never a death-penalty case. Jackson, 51, who'd also spent most of his career in civil law, had been on the bench only four months.

In the days before Riggan's death-penalty hearing, the legal community had debated the new system. Defense lawyers, who'd fought the switch back in 1995, predicted a population explosion on death row, currently occupied by Frank Rodriguez, Robert Harlan and Nathan Dunlap. Gary Davis had been executed in October 1997. Ronald Lee White, 43, a self-professed serial killer, had been moved off death row because the Pueblo County district attorney had recently received a box of investigative files related to White's case from the sheriff's office that had never been turned over to the DA, much less White's attorneys. Although the documents appeared to be duplicates of materials already presented, the DA had decided to go ahead and stipulate that White should get a new sentencing hearing; the date for that was still pending results of tests done on White for hepatitis C, a potentially fatal disease.

But while death row had few residents in April 1999, six death-penalty hearings in addition to Riggan's were coming up. Colorado district attorneys also had announced that they'd seek the death penalty in four as-yet-untried murder cases. With judges now deciding whether defendants should die, defense attorneys were bracing for the worst.

"In Colorado, there have usually been one or two death-penalty cases pending anywhere in the state," David Lane, an outspoken critic of the death penalty who'd represented White in civil suits filed against prison guards, told a reporter. "Now there are a dozen. This never happened before. Murders here haven't all of a sudden gotten worse. Prosecutors know they're going to start filling up death row and are champing at the bit trying to do it. Judges are far quicker on the trigger."

The Riggan case had "serious issues of guilt or innocence," Lane added. And compared to other murders, Paley's death didn't rank "among the 1 or 2 percent of heinous murders the death penalty is designed for."

David Kaplan, a former public defender, declared that "the floodgates have opened up." Five years earlier, while representing a man accused of helping execute two men and wounding another, Kaplan had helped persuade the Colorado Supreme Court that a new death-penalty statute designed to increase the number of death-penalty verdicts was unconstitutional and a violation of his client's rights. The legislature had quickly rectified the problem, but for a few months, the state was effectively without a death-penalty statute. Kaplan had later testified before the legislature against giving death-sentence decisions to judges. In another month, he'd be standing before another death-penalty panel, trying to save the life of convicted killer Francisco "Pancho" Martinez.

"I call it the 'Texasification' of Colorado's death penalty," Kaplan told the press, referring to the Lone Star State's execution of 173 inmates since the U.S. Supreme Court reinstated the death penalty there in 1976. (Colorado had executed just one man -- Davis -- during that same stretch of time.) "Are we going to be a better community because we have 25 people on death row? I don't think that makes Texas a better community."

Kaplan mocked prosecutors' assertions that the three-judge panels would bring "consistency" to death-penalty hearings. "DAs wanted more callused people to make the decision because they didn't trust the public," he said. "Jurors were taking their obligation seriously and not putting everyone on death row that prosecutors thought should be there."

Now district attorneys were trying to lower the capital-punishment bar. "Usually the death penalty is reserved for a certain group of defendants who are unique," Kaplan warned, "even among the group of individuals who have committed a homicide."

Riggan's own defense team added to the furor. Experienced, well-respected attorneys, they had been appointed from the Alternate Defense Counsel, a list of lawyers willing to take on capital cases when the Colorado Public Defender's Office, which handled most death-penalty defenses in the state, had a conflict of interest. In this case, Riggan had fired his public defenders after they had explored the possibility of a plea bargain to second-degree murder, which would have removed the threat of a death sentence.

Hartley, a former Marine who'd tried several dozen murder cases, pointed out that while polls indicated that Coloradans overwhelmingly favored the death penalty, juries had been reluctant to impose it. "There's a difference between favoring the death penalty and imposing the death penalty in only the most extremely aggravated crimes," he said. "It doesn't mean you're in favor of killing every single person charged with first-degree murder."

And Riggan had been convicted of first-degree felony murder, which meant a murder connected to the commission of another felony, in this case sexual assault. No Colorado jury had sent a man to death row for felony murder; historically, they'd balked at the lack of proof that the murder was "intentional" and premeditated. "Do you think there's any possibility that a jury would impose a death penalty in my case?" Chambers, a former prosecutor, asked rhetorically. "There is none, and the prosecutors know it. The only reason they are seeking it is because it's in front of judges instead of citizens."

The defense bar had complained long and hard when, after the first-degree-felony-murder verdict came in, Jeffco District Attorney Dave Thomas announced that his prosecutors -- Chief Deputy District Attorney Dennis Hall and Deputy District Attorney Dana Easter -- would continue to seek the death penalty for Riggan. This was not a clear-cut case in which Riggan's guilt was never in doubt. But defense lawyers also knew that sooner rather than later, a felony-murder case would be brought before a panel of judges to test the new law.

The law was already being tested in other ways. Even as Riggan's hearing was starting, El Paso District Judge Michael Heydt resigned rather than sit on a death-penalty panel that would be considering the fate of Lucas Salmon, accused along with George Woldt of raping and killing 22-year-old Jacine Gielinski in Colorado Springs. Salmon's sentencing hearing was scheduled for that June.

The new system was "unworkable," Heydt said in his letter of resignation to the Colorado Supreme Court. "I do not believe that a fair and just decision can be made by a panel of judges from a paper record. I do not wish to participate in a death-penalty process unless I believe that it is one that I can live with, not only as a judge but also as a human being."

Although judges had allowed jurors to be excused from death-penalty trials because they were adamantly opposed to the death penalty or believed that all killers should be put to death, judges did not have to be "death qualified" in order to sit on panels. They were sworn to uphold the law, but their oath did not specifically address whether they could participate in sentencing someone to death.

Heydt's objections to the new statute weren't all philosophical, however. He was concerned that unlike the judge who'd presided over the trial, the two appointed members of the panel would have to rely on transcripts of the courtroom proceedings. What the judges would know of the witnesses and the crime would come from those transcripts; the rest they'd learn at the hearing.

"I guess if you were to extend his logic one step further, you would probably say that unless an appellate judge sat in a trial court, there could never be a fair and just decision," former Denver District Judge Federico Alvarez told a reporter. But Lynne Hufnagel, also a former Denver judge, pointed out that appellate courts usually focused on specific technical issues within a trial, not the entire trial.

Now Kaplan lamented that the resignation of "people of conscience" from the bench could actually mean more death sentences. The judges who remained, he said, would be those more favorably inclined toward the death penalty. Fighting the proposed statute in 1995, the former public defender had argued that judges would already be under political pressure to appease the voting public by handing down death sentences.

"I know judges well enough," Plaut countered, "to know that they will not compromise their integrity by doing something just because it's popular. I don't know any judge that takes an issue like this lightly."

Plaut certainly did not. Although he had personal reservations about the death penalty in all but the most extreme cases -- such as that of a convicted killer who killed again in prison or escaped from prison by killing a guard and then murdered again once in the community -- he also believed that when he'd accepted his appointment to the bench, it became his duty to carry out the will of the people as expressed through the Colorado Legislature. And the will of the people was to have a death-penalty statute with an established set of guidelines to determine who qualified for the ultimate punishment and who did not. If a judge could not participate in the application of the death-penalty statute for philosophical or moral reasons, Plaut felt that the judge should remove himself from the case.

Plaut's chief concern with the Riggan case was how the three-judge panel should go about reaching its decision. The legislation that created the death-penalty panels did not address the process judges were to use. But about a month before Riggan's hearing began, the Colorado Supreme Court, in reviewing Nathan Dunlap's death sentence, had reaffirmed the four-step procedure that juries had been using to make that decision. Riggan and his colleagues agreed that they would follow the same steps at the Riggan hearing.

Therefore, following opening statements by both sides, the prosecution had presented its case of "aggravating factors," statutorily defined reasons for imposing the death penalty. Then the defense had presented its "mitigating factors," reasons the defendant might deserve a life sentence. In Riggan's case, the defense focused on his abysmal childhood. The lawyers had then given their closing statements, after which Judge Plaut announced that the panel would render its decision a week later, on April 23, 1999.

The courtroom was full that morning, as members of the legal community and the media waited to hear the judges' decision. Plaut announced that the panel did accept the aggravating factor that "the offense" was "especially heinous, cruel or depraved." However, the judges agreed that Riggan did not have a significant criminal history, one of the mitigators, and had been "raised in what can only be described as a horribly dysfunctional family. Regrettably, this was a family plagued by incest, sexual abuse, squalor, poverty and emotional neglect of Mr. Riggan and his siblings."

The third step of the process required that the aggravators be weighed against the mitigators, and the judges unanimously concluded that the aggravator outweighed the mitigators. In other "weighing states," this finding would have meant a death sentence for Riggan. But Colorado had a fourth step: The decision had to be made whether, all things considered, the defendant deserved to die.

Jurors had refused to take that fourth step in felony-murder cases. And now, so did a panel of judges. "We unanimously conclude, beyond a reasonable doubt, that a sentence of death is not appropriate in this case," Plaut announced, reading from the decision written by Jackson. "It is, in our view, entirely appropriate that [Riggan] be removed from society and pay a price that, at least in the view of some, may even be more severe than death itself. But a civilized society should not and cannot take the life of a human being, even one who commits an especially heinous, cruel and depraved offense, if a jury could not conclude beyond a reasonable doubt that the individual in fact administered the fatal injury.

"As much as we are all pained by the loss of Ms. Paley and the unspeakable affront to her body that was performed by Mr. Riggan, our values must be different than that."

Although disappointed with the outcome of the Riggan sentencing, Jeffco DA Dave Thomas and his prosecutors had known as soon as the jury had returned with a felony-murder conviction that the chances were slim that Riggan would be sentenced to die. Even so, Thomas said he felt it was "appropriate" to have sought the death penalty.

For his part, Hartley told the press that he'd never believed that judges would impose more death sentences. "This decision means the same thing juries have been telling us for years," he said. "They don't like to sentence to death on felony murder without more. The death penalty should be reserved for only the most aggravated and extreme cases."

The Riggan panel had not "lowered the bar" for the imposition of the death penalty, as the defense bar had feared. But with Riggan out of the way, the legal community's attention now turned to two death-penalty cases that would be heard simultaneously: Jacques Richardson's in Denver, and that of Daniel Martinez Jr., again in Jefferson County. Each would test the new system in different ways.

Richardson had accosted Janey Benedict, a 34-year-old tour guide, in her Capitol Hill apartment in June 1997. He'd put a noose around her neck, then hog-tied her. A neighbor heard the commotion and called the police, who arrested Richardson after he jumped from Benedict's second-story window. By the time the police reached Benedict, the young woman had strangled and was unconscious; she would die soon after.

The 28-year-old Richardson was not just a burglar, he was a serial rapist. After his arrest, he was charged with three unrelated rapes and convicted of two, for which he was sentenced to 216 years in prison. Denver District Attorney Bill Ritter charged Richardson with first-degree murder after deliberation and first-degree felony murder for the Benedict murder; he said his prosecutors, Bonnie Benedetti and Martin Egelhoff, would be seeking the death penalty.

Richardson's was the first death-penalty case in Denver since the 1997 trial of Jon Morris, who'd kidnapped, raped and strangled five-year-old Ashley Gray. At the trial, Morris's public defenders argued that he was mentally ill and therefore didn't know the difference between right and wrong -- even though he'd tried to conceal the girl's body in a dumpster. The jury had acquitted Morris of first-degree murder after deliberation and agreed instead on a verdict of first-degree felony murder, as well as charges of kidnapping, sexual assault and sexual assault on a child. Given the historic reluctance of juries to sentence a defendant to death for felony murder, Ritter decided not to seek the death penalty and settled for life in prison without parole for Morris.

In Richardson's case, any hope of a death-penalty verdict was ended before the trial even started, although that wasn't immediately apparent. The prosecutors had hoped to introduce Richardson's "prior similar criminal acts" -- the rapes he'd committed -- to show that his motive in binding Benedict was not simple robbery and that the sexual assaults were escalating in violence with each victim.

Usually, defense lawyers are able to keep a defendant's prior criminal history out of evidence, on the grounds that the defendant is to be tried for the crime for which he is on trial, not his past. However, the legislature had passed a "prior similars" statute, designed to deal with serial rapists in particular, which allowed prosecutors to present testimony of previous acts -- if they could demonstrate to the trial judge that the current charge fit into a pattern. The statute was rarely used; defense attorneys fought such motions tooth and nail, and judges tended to view the law very narrowly and in favor of the defendant.

In the Richardson case, public defenders Terri Brake, who'd represented death-row inmate Robert Harlan a year earlier in front of a jury, and co-counsel Charles Garcia won a major victory after the prosecutors asked Denver District Judge Stephen Phillips to allow Richardson's rapes into evidence. Phillips determined that the prosecutors would be allowed to use the evidence only if they agreed to two trials for Richardson: one for first-degree after deliberation, the other for first-degree felony murder. And, he said, he would only let them use the "prior similar acts" at the felony-murder trial if the argument was that Richardson had killed Benedict while committing the felony of rape.

Although he was accustomed to judges rejecting motions to present prior similars, Ritter had never heard of a judge separating a single murder into two trials. The Denver DA tried to protest Phillips's decision to the Colorado Supreme Court, but the state's top judges said they wouldn't even listen to Ritter's arguments until long after Richardson's case was scheduled for trial.

Ritter was stuck. He was sure that with the evidence of the earlier rapes, a jury would understand that Benedict's murder was no accident by a frightened cat burglar and would convict him of first-degree murder after deliberation. Without the rapes in evidence, it wasn't going to be easy. On the other hand, there was no question that Richardson had killed Benedict or that she had suffered a long, torturous death. There was still a good chance that the prosecution's case, even without the rapes, would be enough to win the more severe verdict. Ritter didn't want to put Benedict's family through two trials and then a death-penalty hearing. So he rejected Phillips's compromise. Richardson would be tried once, without the rapes becoming part of the evidence that the jury would hear.

At Richardson's trial, prosecutors argued that Benedict was bound so tightly that the slightest movement caused the noose around her neck to strangle her just a little more. But the defense countered that Richardson only wanted to subdue Benedict so that he could rob her. And the jury ended up split on the charge of first-degree murder after deliberation. Instead, Richardson was convicted of first-degree felony murder -- killing Benedict during the felony of robbery.

Brake believed she'd saved Richardson from a death sentence. The jury couldn't agree that her client had deliberated before killing Benedict, which, as in the Riggan case, would be a "very significant factor" for a panel of judges to consider, she said.

When the felony-murder verdict had come down in the Morris case, Ritter had decided against pursuing the death penalty. But he thought the Richardson case stood a better chance. He was well aware that the panel of judges had refused to condemn Riggan to death for felony murder, but there were dramatic differences between the Morris, Riggan and Richardson cases that he thought judges might find compelling.

Morris, for instance, did not have Richardson's history of violent sexual assault, and although the prosecution had been prevented from presenting that history at trial, it would be fair game at a death-penalty hearing. And while Riggan's guilt had been hotly contested, by the defense and also by the jurors, there was never any question that Richardson had killed Benedict. Richardson's criminal history would also be a slam-dunk aggravator, whereas Riggan's comparative lack of a criminal history had served as a mitigator in his case.

Ritter decided to go for the death penalty. Richardson's panel would include three judges from Denver: trial judge Phillips, as well as Paul Markson and Joseph Meyer III.

Phillips decided to take a different approach to the hearing than Plaut had in Jeffco. This panel would listen to the evidence for each of the four steps and make a decision in each before moving on.

Since the first step was to determine if the prosecution could prove beyond a reasonable doubt the existence of at least one aggravator, the panel listened to the prosecution's case, then heard arguments for and against the aggravators.

The panel determined that Benedict's murder was not "especially heinous, cruel and depraved," Phillips said, since it did not fit in "those murders which are 'conscienceless, pitiless and unnecessarily torturous to the victims,'" a definition handed down by the Colorado Supreme Court in an appeal of the Gary Davis case.

But the judges did grant the aggravator that Richardson had committed the murder in the course of another felony, robbery. And so they moved on to the second step, determining whether any mitigating circumstances would cause them to hesitate in imposing the death sentence.

Nothing in Richardson's past or present mitigated his accountability, the judges concluded, moving on through the third step and determining easily that the prosecution had met the necessary standard for Richardson to be considered eligible for the death penalty. Then, one last time, the lawyers from both sides again squared off to argue -- this time over the fourth step, whether Richardson deserved to die.

On May 8, 1999, the panel announced its verdict: Richardson would be spared. Echoing the Riggan panel, the Denver jurists noted that neither a Colorado jury nor a panel of judges had ever sent a defendant to death row for anything less than first-degree murder after deliberation.

"We all see Richardson as a morally culpable, despicable and dangerous human being who, prior to being a felony assailant, burglar and murderer, was a manipulator, freeloader and abuser," the judges determined. "But the statutory scheme is one designed to distinguish the most horrendous first-degree murders from the rest. That statutory scheme has, to date, produced no death penalty except for premeditated, intentional murder."

Outside the courtroom, Mary Sue Hoaglin, Benedict's mother, said she was satisfied with the verdict. Richardson would spend the rest of his life in prison, where he couldn't harm anybody else. "I thank the state of Colorado for what they've done for us," she added.

"I think it was a correct decision, a legally correct decision," said defense attorney Garcia. "My goal in doing this was to save Mr. Richardson's life, and this is what we did. I don't believe in the taking of human life by the state, particularly in this case."

Ritter told the press that he didn't think the decision necessarily indicated that judges' decisions would mirror those of juries past. As he spoke, he was aware that that same afternoon, a third murderer had escaped a death-penalty verdict in Jefferson County. Still, even with a 3-0 record in favor of defendants, Ritter said he didn't think the switch to death-penalty panels had been a mistake. "It's too early," Ritter said. "We've had three cases over a couple of months. We can't make any determination based on these three cases."

All the Denver DA and anyone else knew was that for the time being, the bar had remained firmly in place -- even for a man accused of one of the state's most horrific crimes: the murder of Brandaline Rose DuVall.

On May 30, 1997, Brandy was a petite fourteen-year-old who loved her mother, got good grades and looked forward to graduating from middle school in a couple of days. She was growing up; just a few weeks earlier, she'd brought home her first rose from a boy.

Brandy took a bus to a friend's house that evening. They smoked pot and persuaded a man to buy them a six-pack of beer. A little before midnight, she said goodnight to her friend and walked to a bus stop on Federal Boulevard to catch a ride home. Brandy was waiting there, wearing a bright-red Chicago Bulls jersey bearing the number of her favorite player, Michael Jordan, when a carload of young men pulled up. The shirt, a favorite of the Bloods gang, had attracted their attention.

No one knows why Brandy got in the car that night or whether she was forced to do so. But the young men took her to a house in Adams County, where older core members of the Deuce Seven subset of the Crenshaw Mafia Gangster Bloods had spent the day getting drunk and smoking pot. The house was rented by Jose "Uncle Joe" Martinez Jr., the uncle of Daniel Martinez Jr., known on the streets as "Bang" and one of the Deuce Seven founders.

Another original Deuce Seven member, Francisco "Pancho" Martinez Jr., was also there. He and Danny had been inseparable since elementary school, and as young teens, they had been "beat in" to the CMG Bloods at the same time. The last two members of the core group present were Sammy "Zig Zag" Quintana Jr., a first cousin of Danny's, and sixteen-year-old Frank Vigil Jr., a protegé of Danny's nicknamed "Little Bang."

Over the next several hours, Brandy was stripped, raped, sodomized and cut; Francisco Martinez shoved a broom up her rectum. When they were through raping her, the gang members handcuffed and hooded her and began talking about how she had to be killed so that she couldn't go to the police.

Brandy was placed in the back seat of Quintana's car, between Danny Martinez and Vigil. Quintana drove, with Francisco Martinez in the front passenger seat. As they headed into the mountains, Brandy pleaded for her life, promising she wouldn't tell what had happened to her. Instead of showing mercy, Francisco turned around and began stabbing her in the chest and stomach with a knife. When Quintana complained that he was getting blood on the seats, Francisco stopped stabbing Brandy and instead started strangling her.

Several miles up Highway 6, Quintana pulled over next to a steep embankment above Clear Creek. Brandy was pulled from the car and knocked to the ground. As Quintana held her head and Danny and Frank looked on, Francisco stabbed her repeatedly in the neck, cutting the carotid artery and jugular vein. Quintana and Francisco then picked up the girl and threw her down the embankment.

The gang was back in the car when Francisco announced that he'd misplaced the murder weapon. Danny got out and retrieved it. Then, on their way back to the city, Danny Martinez remarked, "I guess this makes us serial killers now."

Although she'd been stabbed 28 times, at least twice fatally, Brandy didn't die immediately. She tried to struggle up the embankment, hands still cuffed behind her back, then fell back down. Finally, she bled to death next to the stream, where her body was spotted later that morning, May 31, by a tourist.

Angela Metzger, who'd been desperately searching for her daughter, didn't know what had happened to Brandy until the next day. She hurried to the morgue and identified first her daughter's jewelry, then her daughter's body. Wake up, baby, she cried, pounding on the glass partition that separated her from her child. Wake up!

Eventually, Jose Martinez told a friend what had happened at his home; his friend contacted the police. Confronted, Martinez told police that his nephew and other members of the Bloods gang had acted like they were "possessed by the fuckin' devil" when they tormented the girl. "Uncle Joe" was soon joined on the prosecution's star witness list by Quintana, who'd been charged with two counts of first-degree murder after deliberation. Like the others, he'd been arraigned for Brandy's murder, but he was also charged with the shooting death of nineteen-year-old Venus Montoya a year earlier. Faced with two possible death-penalty hearings, Quintana had an attack of conscience, found religion and quickly agreed to testify against the others in exchange for being allowed to plead guilty to two counts of second-degree murder.

Frank Vigil, charged with first-degree murder after deliberation, was the first of the gang members to go on trial for Brandy's murder, in January 1998. Since he was still under eighteen, he was not eligible for the death penalty.

Vigil was represented by Randy Canney, a former public defender now in private practice. Canney had never tried a first-degree-murder case, and there wasn't much he could do with this one other than try to get the jury to go for something less than first-degree murder and life in prison without parole.

Canney's strategy was to convince the jurors that his client, the smallest and youngest gang member, was the least involved. But the prosecution team pointed out that Vigil had plenty of involvement that didn't suggest he was afraid of anything other than getting caught. It took the jury only six hours to convict Vigil of first-degree murder after deliberation, and he was sentenced to life in prison.

Francisco "Pancho" Martinez went on trial in August 1998, before Jefferson County judge Michael Villano. He was defended by David Kaplan and Patrick Ridley. On September 3, after only two hours of deliberation, the jury came back with its verdict: guilty of first-degree murder after deliberation, sexual assault, sexual assault on a child using force, and kidnapping.

Danny Martinez went on trial in February 1999, represented by Dave Lindsey and Forrest "Boogie" Lewis, whose last death-penalty client had been Nathan Dunlap. Jeffco judge Leland Anderson presided. This jury took a little longer than Francisco's had to reach a verdict, but the result was the same.

Danny Martinez was in front of Judge Anderson again on April 27, 1999, just four days after the conclusion of Riggan's death-penalty hearing in the same courtroom and a week after the Columbine shootings. Anderson was flanked by judges Timothy Fasing of Arapahoe County and John Coughlin of Denver, the panel that would decide whether he would be sentenced to death.

"The presumption of innocence is gone," Ingrid Bakke said, delivering the prosecution's opening statement for the fourth time in the DuVall case. "Mr. Martinez sits before you, a convicted murderer." Bakke was normally assigned to the unit that deals with sex crimes against children; this had been her first homicide case. And this was the first time she would ask for another human being's execution. To do so had taken a lot of soul-searching for the prosecutor, who wasn't sure where she stood on the death penalty when she was assigned to the case. But as she'd assembled the aggravators with her two colleagues on the case, Hal Sargent and Mark Randall, she'd come to believe that the punishment fit the crime.

That decision had its price. Defense attorneys with whom she'd once been on friendly terms went out of their way to avoid her, wouldn't even speak to her, because she was helping prosecute a death-penalty case. She'd crossed the line: Now she was more than just a courtroom adversary. She was the enemy.

Bakke didn't waste a lot of time making an emotional pitch. The three judges wouldn't be swayed by courtroom theatrics, or so prosecutors had argued when pushing for the statute that gave judges, rather than a jury, the responsibility of issuing a death sentence. Instead, she laid the groundwork for the four-step process that the judges would follow to reach their decision. The prosecution, she said, would prove beyond a reasonable doubt five of the seventeen possible aggravators allowed by law, several of which -- such as killing a kidnap victim -- had been added after Gary Davis murdered Ginny May.

For the second time in a month, Jeffco prosecutors were testing whether judges would do what juries had not. Danny Martinez had been convicted of first-degree murder after deliberation. The prosecution theory presented to the jury was that while Danny had participated in the rape and torment of Brandy DuVall and had "called the shots" as the gang's leader, Francisco Martinez had stabbed the girl to death. So the wording in Danny's first-degree murder count included the "complicity instruction," which meant the jury didn't have to find that Danny had done the actual stabbing, just that he was a "principal in the offense."

It was essentially the same instruction that a Denver jury had been given in the death-penalty case against Chris Rodriguez, who'd raped Lorraine Martelli back in 1984 and stood by as his brother, Frank, raped and then stabbed her to death. The jury had found Chris guilty of first-degree murder after deliberation, too, but then wouldn't go for the death penalty because he had not done the actual killing. He got life in prison; Frank was sentenced to death.

Danny Martinez's case would be another test of what separated killers who got life in prison from killers who got a lethal injection. This time, though, Jeffco prosecutors thought they had a better chance than they had with Robert Riggan. The Danny Martinez case was as good as they were going to get for a complicitor case. He'd done everything except stab the girl, and in some ways -- the amount of sexual contact, for example, and his role in deciding her fate -- he'd gone beyond even Francisco Martinez. It was hard to imagine a more heinous case or what more a complicitor would have to do in order to qualify for the death penalty.

Bakke was almost at the end of her opening. Before the hearing, she'd told friends that it had given her a strange, unpleasant feeling when she wrote down the last line: "The People respectfully request that you sentence Danny Martinez Jr. to death." Now she felt comfortable saying it out loud, but she took no joy in it.

In Lewis's opening statement, he outlined Martinez's rough childhood and said his client had many good qualities. But it was clear where the crux of the defense would be: "Danny is guilty of complicity," he conceded. "But the blood of Brandy...is on the hands of Francisco Martinez."

The judges had an alternative to sentencing Danny to death. "He'll never get out of prison," Lewis pointed out. "He'll never see his children except through bars. He should be in prison for the rest of his life, and he will be. But the death penalty...is excessive."

As Lewis spoke, Jim Aber, the chief deputy for the state public defender's office, sat listening on the defense side of the spectator gallery. The Golden-based Aber was a frequent critic of the Jefferson County DA's Office for its death-penalty decision. But he was also the lawyer who'd represented Sammy Quintana in his dealings with the prosecution; he'd even spoken up at Quintana's sentencing following Danny's trial, praising his client's "truthfulness" on the witness stand. "Mr. Quintana has really brought down the Deuce Seven gang and the CMG Bloods gang," he told Judge Villano. In Quintana, he'd seen "more remorse and rehabilitation than I think in any other client I've ever seen."

The irony of Aber sitting on the defense side now was not lost on court observers. He might have saved his client from the death penalty, but Quintana was one of the main reasons that two others -- his cousin and his friend -- were facing the possibility of a death sentence.

It took the prosecutors only that one day to lay out their case for the aggravators. The defense attorneys would use the next three to present their side. Over the objections of the prosecution, they were allowed to bring in witnesses who testified regarding the "evil" Francisco Martinez, to contrast him to Danny.

And again over the prosecution's objections, the defense was allowed to call one of its own investigators to the stand, where she discussed death-penalty statistics she'd obtained from the NAACP Legal Defense Fund. According to those statistics, of the 6,331 people sentenced to die since the Supreme Court had reinstated the death penalty in 1976, only 76 were "non-triggermen." Defense attorney Lindsey told the panel that those statistics provided a "moral sense" of the record regarding complicitor sentencing around the country.

At the end of the defense case, Danny Martinez shuffled to the podium for the traditional show of remorse. "Your Honors, I just want to apologize to both families -- my family, Brandy's family -- for what has taken place. Also to your Honors about putting them in a position like this," he said.

"I know it's not easy for nobody, and there's really not no words...You know, there ain't no words that could really just explain anything about this. So, you know, there's no -- any hard feelings against anybody, no matter what happens, and I'll just make the best out of whatever happens. And thank you for being respectful to my lawyers. Thank you."

The prosecution's closing arguments fell to Randall. He started right in on what he knew would be the heart of the defense's closing argument: that Danny was not the man who'd actually stabbed Brandy. "He intended her death after her torture," Randall said. "The only thing that he does not do is physically place the knife into her body. He has Francisco for that."

Randall reviewed the prosecution's five aggravators and pointed out that no mitigator came close to balancing them. And when the prosecutor arrived at his case for the fourth step, he didn't even try to argue that the death penalty served as a deterrent. Instead, he asked for retribution: "Some crimes are simply so shocking that society insists on the adequate appropriate punishment. He should die because of every horrible, torturous act that he did to that girl."

There was no need to compare Danny Martinez to his friend, Randall continued. "The standard of the death penalty is not Francisco Martinez. The bar is not Francisco Martinez. Francisco Martinez may be a hundred miles above the bar. There's other people that go over that bar, too, and he's one of them," he said, pointing at Danny. "Sentence him to the only appropriate sentence there is: death."

As soon as Randall finished, Lewis rose to deliver his closing. "I'm so tired of seeing the carnage in these cases, and there is much in this one," he said. But although what his client had done was bad, it was not as bad as what others had done. "He's not a killer," Lewis said of Danny. "This man was not on the road to killing anybody. He's no Francisco. He's not an evil person.

"Do we kill a person who did not himself kill this little girl? Or should the death penalty be reserved for those worse cases, for the worse people, for those by whose hand the death of sweet, innocent people was caused?"

Although the prosecution had argued against their inclusion, during the rebuttal that followed Lewis's closing, Randall used the NAACP statistics to his advantage, noting that some complicitors had been sentenced to death. "We don't know the facts of all those cases," the prosecutor said. "But what those statistics do tell us is that there are some cases in which it is absolutely appropriate for even a non-triggerman to be sentenced to die, and Colorado is now facing one, right here and right now."

Randall pointed out that many people, including some of Danny's own family members, had grown up in the same bad neighborhood and yet had not become killers or gang members. "He comes out of that neighborhood as the evil murderer that he is, and other people do not. Why? Because he's different. Because he's capable of what he did to Brandy, and the others are not," Randall said. "There is only one punishment appropriate for the horror of this crime. It must stop. It must stop. He's been given enough chances. No more.

"Brandy's now dead. Danny Martinez must be sentenced to death."

On the morning of May 7, the courtroom filled quickly as everyone waited for the judges to deliver their verdict.

Angela Metzger sat behind the prosecution table, numb. Although she didn't believe that Danny would get the death penalty, the thought didn't disappoint her; she knew that he would spend his life behind bars. And her heart went out to Theresa Swinton, Danny's mother, who was losing her child, too. She'd been upset when the defense attorneys had attacked Swinton, as if what had happened to Brandy had been her fault. Danny Martinez was a grown man who had made his choices.

Behind the defense table, Swinton fought to control her fear. When called by the defense to testify, she'd taken the opportunity to apologize to Angela Metzger and the rest of Brandy's family. Now all her thoughts were on her firstborn. Please don't let them kill my son, she prayed.

The judges came into the courtroom, and Anderson warned the standing-room-only crowd that anyone who felt that he might not be able to control himself should leave. "Those people of courage, respect and civility," he said, "are welcome to sit with me at this time."

Then Anderson quickly announced, "We cannot reach a unanimous verdict." The words took a moment to sink in: Danny Martinez would not be sentenced to die.

Only later would those in the courtroom learn how close Martinez had come to death. Anderson and Fasing agreed that the prosecution had proved three of the five aggravators and that those aggravators outweighed the mitigators. In particular, they rejected the idea that Danny's participation in a murder "committed by another" was "relatively minor." Nor did they allow him to blame drugs and alcohol for his behavior. They did, however, sympathize with his "difficult and even tragic childhood" and allowed that as a mitigator.

Still, at the fourth step, Anderson and Fasing noted that Danny's history and background included a long series of decisions to engage in criminal conduct and that he evinced an attitude of reckless indifference to the possibilities of violence and confrontation between gangs. "The fact that the defendant did not administer the lethal wounds is a circumstance which pales when measured against the series of brutal acts leading up to the killing of Brandy DuVall," they determined. And they agreed that it was constitutionally permissible for a complicitor, "under appropriate circumstances, to be executed in a capital case." And the circumstances in this case were appropriate, because Martinez's "participation was substantial and his intent murderous." For this reason, they would have imposed a sentence of death.

But Judge Coughlin had disagreed. In fact, he didn't even get as far as the fourth step. He accepted only one of the aggravators: that Danny Martinez had conspired with others to kill Brandy. In rejecting the aggravator that he'd "committed the offense in an especially heinous, cruel or depraved manner," Coughlin said he interpreted "offense" to mean only the act of stabbing Brandy to death.

Coughlin was also much more generous in accepting mitigators. Again interpreting "the offense" to mean only the stabbing, he agreed that Martinez was not the "principal in the offense" and that his participation was "relatively minor." He accepted the mitigators that Danny was drunk and had had a difficult childhood that influenced his actions. Those mitigators, he said, outweighed the single aggravator, and so there was no reason to proceed to the fourth step.

Although Coughlin had already eliminated any possibility that Martinez would be put to death, he went on to contradict Anderson and Fasing, asserting that the Colorado Supreme Court "clearly holds that the death penalty may not constitutionally be imposed on a defendant convicted on a complicity theory."

For the third time in as many attempts, a killer had avoided the death sentence. And even though judges were now in charge of the decision, once again the will of the majority had been overruled by a single vote.

Going into the trial, the prosecution team had concerns about Coughlin, a staunch Catholic who went to Mass daily. But they'd gone on the assumption that if Coughlin was philosophically opposed to the death penalty, he would have removed himself from the process.

Prosecutors had to make sure that was still true, but Coughlin's holdout certainly raised concerns that judges did not have to be "death qualified," as jurors had been.

Jeffco DA Thomas, echoing the words Denver DA Ritter uttered that same afternoon, said it was too early to dump the new statute. "We've just started the process," he said.

The district attorneys recognized that all three of these cases had issues that would have troubled juries, too. But in just a few days, Thomas's prosecution team would take a fourth case before a panel of judges, a case with no such issues.

If black came in different shades, as Randall had remarked, it didn't get any darker than Francisco "Pancho" Martinez Jr.

Hal Sargent took a last glance at his notes before looking up at the judges. It was May 19, 1999, just two weeks shy of the day two years before when Brandy DuVall's savaged body was found alongside Clear Creek. Two years of prosecuting members of the Deuce Seven Bloods gang for Brandy's rape and murder were nearly at an end.

The task had been monumental. Endless meetings with defense attorneys to make deals and get co-defendants to roll over and testify against the others. Innumerable hearings to quibble over legal technicalities. Three murder trials. Two death-penalty hearings, including this one, for Francisco Martinez Jr.

Francisco's defense team alone had filed more than 300 motions between his trial and the hearing. Most of the motions contested the constitutionality of the three-judge death-penalty panels, attacking the statute from every conceivable angle. Others seemed designed merely to take up time and resources, such as the motion that demanded to be informed of any "known side effects" of the drugs used for lethal injection and whether those drugs had been approved by the Food and Drug Administration. The defense had won perhaps half a dozen of its motions, although none that challenged the panel's authority or greatly affected the prosecution's strategy. Yet each issue had to be researched and answered.

The prosecution team was physically and emotionally spent. The prosecutors' workdays began at six in the morning and continued until ten at night. There was never any downtime; another hearing or trial or sentencing always loomed a week or two away. None of the members had taken a real vacation in nearly two years. Even weekends were spent working.

The emotional demands were just as wearing. They all had dreams about the case. The crime. The people. The testimony. And it never got any easier. Every glance at the photographs of Brandy's mangled body brought back all the horrors.

Things had gotten even rougher after Danny Martinez's death-penalty hearing had ended in a life sentence. Sargent worried that his material was growing old, flat. He didn't want Brandy DuVall to be remembered as a two-dimensional footnote in the law books, but rather as a young girl who'd died so horribly at the hands of these young men.

Francisco's lawyers looked worn out, too. The saying "death is different" applies to defense attorneys as well as prosecutors. They weren't immune to the tears shed by the victim's family; they had to look at the same photographs and listen to the testimony describing their client's monstrous act. But it was their job to try to save the lives of killers.

David Kaplan and Patrick Ridley had fought hard and bitterly, filing ten times the number of motions that Danny Martinez's team had filed. The prosecution called them obstructionist, but Judge Coughlin's position on Danny's case was proof that it took just one argument, heard by just one judge, to prevent a death-penalty verdict. The defense attorneys weren't counting on that, though. And in every motion that was turned down, every objection that was overruled, they saw the possibility of an appeal. Even if the three judges sentenced Francisco to death, the fight would not be over.

Francisco Martinez sat at the end of the defense table. His hair had been shaved to a dark stubble that matched his goatee. He wore a long-sleeved white dress shirt that hid the gang tattoos on his arms and covered the electric-shock belt that bulged from his lower back.

Francisco hadn't been in the courtroom for most of the death-penalty hearing. On the first day, his lawyers had asked that he be allowed to stay in his cell; he didn't want to hear the bad things they were going to say about his family members as they attempted to save his life. Of course, that meant he wouldn't have to hear from Brandy's family about the suffering he'd caused them, either. But he'd been back in the courtroom for the last two days of the hearing, listening to defense psychologists explain why he had joined a gang, explain his propensity for violence, explain his inability to make good decisions while drunk and "under stress."

On the last day, before the closing arguments, Francisco had made his apology. Addressing the panel -- Denver District Judge Robert Hyatt, Arapahoe County District Judge Deanna Hickman and Villano -- he said: "Your honors, I want to apologize to Angela Metzger, and Paul and Rose Vasquez, and say that I am deeply sorry for my participation in this crime...She didn't do anything to deserve what happened. You didn't deserve this."

Then Sargent had begun his closing statement. "We would have to search a long time in the darkest reaches of our minds and imaginations to come up with a crime more depraved than this one," he told the courtroom. "We've seen hell in its most human form."

But that wasn't the point, Kaplan responded in his closing. "Who should live and who should die is not an easy question for a civilized society," he told the judges, urging them to make their decision "not just according to legal concepts, but moral concepts." And then he ended his remarks by recalling the Columbine shootings a month earlier. A civilized society, he said, needed to ask questions about what events preceded "something this horrible...whether Brandy DuVall or Columbine, and what might have been done to prevent either one."

This was the first time he'd had to argue whether a client should live or die, Kaplan said, "and I'm not quite sure how to sit down. Tomorrow it will be too late." He asked the judges to try to understand the forces that created Francisco "and, hopefully, to understand is to forgive."

Then Sargent got the last word. "Mr. Kaplan ended with a point that I think deserves some comment," he said. "Can we explain? Can we understand Mr. Martinez?

"To understand does not mean to excuse. We can hope to understand and to explain what combination of forces make Francisco Martinez the man he is. But when we're done with that, when we're done explaining who he is, the question is, so what? What do we make of it? Do we excuse him?"

As Sargent spoke, 25-year-old Francisco kept his eyes averted. He no longer looked like the cocky gangbanger who'd smirked at his murder trial, but like a man who realized he'd reached the end of the line.

"Whatever combination of forces brought Francisco Martinez to be the man he is," Sargent continued, "he is an absolutely dangerous man...All you've got to do is listen to him if you want to know what makes him tick, what he is about."

Walking over to a blackboard where the defense had created a timeline charting Francisco's unhappy childhood through his monstrous adulthood, Sargent pointed to several photographs of the defendant as an infant and a boy. "I have sympathy for this child of one or eight who may have seen more than any child should be exposed to," he said. "And I have sympathy for that child who saw too much, perhaps. That he failed to learn, failed to change his behavior, is not our fault. He has to be held accountable for those decisions he made."

Then the prosecutor pulled out a book written by psychiatrist Willard Gatlin, in which he lamented the aftermath of the murder of a young woman named Bonnie Garland. "'When one person kills another,'" Sargent quoted, "'there is an immediate revulsion at the nature of the crime. But in a time so short as to seem indecent to the members of the family, the dead person ceases to exist as an identifiable figure.

"'To those individuals in the community of goodwill and empathy, warmth and compassion, only one of the key actors in the drama remains with whom to commiserate, and that is always the criminal. The dead person ceases to be part of everyday reality. She ceases to exist. She is only a figure in a historic event. And we inevitably turn away from the past towards the ongoing reality, and the ongoing reality is the criminal.

"'He usurps the compassion that is justly the victim's, and he will steal the victim's constituency along with her life.

"'Don't let that happen. He does not deserve your sympathy. He does not deserve your compassion. He doesn't deserve your mercy. And most of all, he does not deserve your leniency.'"

Sargent closed the book and picked up a photograph of Brandy. He held it up as he approached the judges. "Your compassion," he told them, "should be justly reserved for this fourteen-year-old girl. This little girl whose life he stole.

"And," he said, turning to face the benches behind him, "for the family, he left behind his actions. Imagine the pain that they feel every day. As painful as it was to listen to them in the few minutes they described what her loss has been to them and how they fell...how that tears them apart...Imagine how they live with that every single day, and will until they die.

"Those are the people who deserve your compassion, your goodwill," Sargent said, and pointed at Francisco. "Not this man. There is no other choice but to give him the ultimate punishment, and that is the sentence of death."

For a moment, the courtroom was absolutely silent. Then a sob escaped from Brandy's mother -- a brokenhearted reminder that for some, this would never be over.

The courtroom was packed again on May 27, when the judges announced their verdict. They had accepted all five aggravators, while agreeing to just the one catch-all mitigator that "this defendant did endure a difficult, disturbing and unsettled childhood."

They'd easily determined that the aggravators outweighed the mitigators, and so had proceeded to the fourth step. "In nearly fifty years of collective judicial experience, this panel has never dealt with a more shocking display of conscienceless depravity than that of the defendant," the judges wrote in their sentencing order. "While the panel acknowledges that many aspects of the defendant's childhood were very disturbing to this panel, nothing in that childhood adequately explains the man he has become."

Then Villano pronounced the verdict: "It is the judgment, sentence and warrant of the Court that the defendant, Francisco Martinez Jr., be delivered to the executive director of the Colorado Department of Corrections to suffer the penalty of death by lethal injection."

After court was adjourned, DA Thomas said quietly, "This is society's way of defending itself."

For public consumption, Kaplan had commented previously that the death penalty should be reserved only for the worst of the worst. But that wasn't really where he stood. "I don't think anyone deserves to die," he said after the verdict was read. "This whole event started with an act of violence, and now it's ending with an act of violence."

But not all defense lawyers were upset by the verdict. "If our society is going to have a death penalty," attorney Scott Robinson told a reporter, "it needs to be imposed in appropriate cases, and certainly the facts in the DuVall murder are pretty horrendous."

Craig Silverman, who'd helped put Frank Rodriguez on death row, had run against Denver DA Ritter in 1996, criticizing his boss for not being aggressive enough in pursuing the death penalty. Now in private practice, Silverman noted that Francisco Martinez fit the profile of the men already on death row. "This verdict is completely consistent with the people who have traditionally been sentenced to death in Colorado," he told the Rocky Mountain News. "Most of them were convicted of kidnapping, raping, torturing and murdering an innocent woman...Killing multiple people will get you there, too."

"Apparently, judges are making the distinction between the crime and the defendant and the facts," legal analyst Andrew Cohen told the Denver Post. "If only one of every four is going to render a death verdict, it seems there are safeguards in place. Judges don't seem to be rushing defendants to death."

Angela Metzger didn't care about the legal arguments. "This doesn't lessen my pain, no," Brandy's mother said. "It would be nice if any of these sentencings and all these years -- even the death penalty -- would bring Brandy back, but that can't happen."

She hadn't supported the death penalty before her daughter's murder, and she'd been ambivalent when the DA decided to pursue it for Danny Martinez and Francisco Martinez. She did not plan to attend the latter's execution. "It's nothing I want to see," she said. "It would not bring me any kind of satisfaction to see anyone else die. I'm not like that. I don't think we'd find any joy in watching a man die, even if he did kill my daughter."

So death row had a new tenant, and three more men faced death-penalty hearings in the coming months: Lucas Salmon, George Woldt and William Neal. In the four cases they'd considered so far, the panels of judges had acted much more like juries than anyone had predicted.

But in two of the upcoming cases, the panels would consider a type of testimony that no juries had ever heard. It was called a "proportionality review" and allowed the character and crimes of the defendant to be compared with the character and crimes of men already on death row. The proportionality review demanded a judgment call of where a particular killer fit on murderers' row -- above or below the death-penalty bar.

Read more Westword coverage of Colorado's death penalty in Penalty Zone


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