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Judgment Day

In the end, it wasn't so easy to kill Robert Lee Riggan Jr. after all.
The 39-year-old drifter from Iowa was convicted last fall of the May 1997 murder of 21-year-old prostitute Anita Paley, the mother of two little girls. Riggan had taken Paley up to the mountains outside of Black Hawk, where he'd assaulted her; passersby later saw him dragging a sleeping bag bearing her bloody body. Paley, still unidentified, died from a blow to the head; a three-inch incision had also been cut into her vagina, severing an artery ("Trials and Tribulations," November 19, 1998).

After a lengthy trial, four days of deliberations and his conviction by a Jefferson County jury, Riggan's ultimate fate rested with a panel of judges. The Jeffco prosecutor had asked for the death penalty and, through an odd twist in timing, Riggan would be the first defendant in the state to have his life-or-death sentence determined by three judges rather than by a jury.

If you believed certain defense attorneys, that meant Robert Riggan was as good as dead.

In 1995, the Colorado Legislature approved a bill that called for taking a death-penalty decision away from the jury that had decided the original case and giving it to a three-judge panel instead. District attorneys, who had lobbied the legislature to pass the law after several setbacks by holdout jurors, argued that it would bring more "consistency" to death-penalty sentencing. But defense attorneys, including some who will soon be arguing for their clients' lives before such panels, complained that judges would simply serve as rubber stamps for bloodthirsty prosecutors.

Judges, of course, have long done the sentencing for all crimes other than those that pose the possibility of the death penalty, including first-degree and felony murder. Only when a defendant's life was at stake was a "jury of his peers" to decide his ultimate fate. But the law that took effect July 1, 1996--shortly after a jury consigned Nathan Dunlap to death for the Chuck E Cheese murders--changed that, moving responsibility to a panel of judges. Initially, prosecutors had wanted a single jurist--the trial judge--to rule on the issue, a system used in several states, including Arizona. But after Governor Roy Romer made it known that he wouldn't sign such a measure, lawmakers compromised with a panel of judges, a setup shared only with Nebraska. Colorado's death-penalty panels would consist of the trial judge and two more judges selected randomly, by computer, from surrounding counties.

By January of this year, six death-penalty cases were pending--four in Jefferson County alone. And after an appeal by attorneys representing Francisco Martinez, convicted last September of the murder of Brandy DuVall, Riggan's hearing, set to begin April 12, suddenly became the first that would go before a three-judge panel.

El Paso County Judge Michael Heydt chose to resign on the first day of Riggan's hearing rather than sit on a death-penalty panel in Colorado Springs in June. In his letter of resignation, he called the new system "unworkable," adding, "I do not believe that a fair and just decision can be made by a panel of judges from a paper record."

Riggan's panel included Jefferson County District Court Judge Frank Plaut, who'd presided over Riggan's October trial--Plaut's first murder trial since his appointment to the bench in 1996. The other members--Brooke Jackson, another Jeffco judge appointed just last year, and Robert Smith, an Arapahoe County District Court judge since 1987 who'd presided over murder trials but never one involving the death penalty--would have to rely on transcripts from that trial as well as testimony from witnesses brought in specifically for the hearing.

When Colorado lawmakers adopted their new death-penalty system, they did not elaborate on how the three-judge panel should determine if a death sentence was in order. So Plaut and his fellow jurists followed the four-step process that juries had previously used in reaching their death-penalty decisions, a process reaffirmed by the Colorado Supreme Court just a month before in a ruling connected to Nathan Dunlap's case.

The three judges began their work without benefit of the defendant's presence. Shortly after he was brought into the courtroom, Riggan had demanded that he be allowed to return to his jail cell. "I don't want no part of this garbage," he told Judge Plaut. "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 prosecution had lied during his trial, Riggan said, and his attorneys could have proved it, but they didn't try. In fact, Riggan complained, when he'd attempted to say something about that during his trial to lead attorney Dennis Hartley, the lawyer had told him "that if I didn't stop, he was going to rip my fuckin' head off."

 

Riggan was allowed to leave the courtroom. He would not return until his sentence was read.

Step One: The first step in the four-part death-penalty process calls for the prosecution--in this case, deputy district attorneys Dennis Hall and Dana Easter--to prove at least one of fourteen "aggravating factors" beyond a reasonable doubt.

The Jeffco prosecutors focused on two. One was that the murder and sexual mutilation of Paley was "especially heinous, cruel and depraved." In order to prove this, they produced witnesses who contended that an unconscious person--as Paley would have been after the blow to her head--can feel pain. What Riggan had done by cutting Paley's vagina constituted "gratuitous violence" on a helpless victim, Easter said, and "served no purpose other than the pleasure of the defendant." Untreated, she added, the wound would have killed Paley.

The defense, however, argued that there is no medical proof that an unconscious person feels pain. Besides, attorney Nathan Chambers pointed out, the prosecution's theory about how Paley was cut was "just that...a theory...How did that injury happen? I do not know. The point is, neither do they." Moreover, Chambers said, the vaginal injury could not be taken into consideration, because it was not the cause of death.

And the real cause of death, Chambers argued, those one or two blows to the head--provided the panel accepted the prosecution's argument (as the jury had) rather than the defense version that Paley jumped from Riggan's moving vehicle--could hardly be considered especially heinous, cruel and depraved.

The prosecutors' second aggravating factor was that Riggan "intentionally" meant to kill the young woman whom he'd picked up and spent a couple of days with, buying her crack cocaine, shopping for clothes, referring to her as his wife--and then taking her up to a remote mountain cabin and leaving her for dead.

Riggan's fate hung on this second factor. The jury had convicted him of first-degree felony murder--a murder committed during the commission of, or to cover up, another crime--in this case, sexual assault with a knife. However, the jury had hung (8-3 in favor of a guilty verdict, with one juror excused from deliberations because of illness) on the more serious charge of first-degree murder "after deliberation."

That charge includes the "intentionally" wording; felony murder does not. But prosecutors now argued that their evidence--that Paley suffered more than one blow to the head; that Riggan inflicted the vaginal wound; that she was left to die--proved Riggan intended to kill her. And, they argued, the three-judge panel wasn't bound by the jury's inability to decide if the murder was intentional.

Defense attorney Chambers countered: "The government is asking you to do what the jury refused and to substitute your own judgment...the danger of which should be self-apparent." Especially, he added, since there was "compelling evidence that Bob Riggan did not cause the death of Anita Paley, intentionally or otherwise."

But while arguing that the judges were bound by that decision of the jury, the defense attorneys also urged the judges to throw out the jury's conviction of Riggan. In response, the prosecution claimed that the judges were bound to honor the jury's decision regarding felony murder.

Although their testimony had little to do with the legal contentions regarding aggravating factors, two sets of witnesses were presented by the prosecution. One--made up of Paley's mother, sister and stepfather--testified that the girl they knew wasn't the crack-addicted prostitute who died as a "Jane Doe" at St. Anthony's Hospital. She was an athletic, happy girl who had dreamed of being a nurse and was a good mother. But the pressure of raising two girls while her marriage was failing was too much, her mother said, and Paley had "walked away." Still, she'd talked about straightening out her life and returning to her children.

The other group of prosecution witnesses was designed to reflect poorly on Riggan's character. One was a prostitute in Des Moines who had accused him of tying her up and raping her at knifepoint. Another was his former common-law wife, who said Riggan had kidnapped her at knifepoint and taken her to a remote shack in the Iowa countryside, where he'd raped her. But the impact of that testimony was blunted somewhat when she confessed that she still felt some love for Riggan, who had fathered two boys with her, and

didn't want him to die.
The judges' panel refused to acquit Riggan. They also refused to accept the "intentional murder" aggravator. They did, however, find that the prosecution had proved beyond a reasonable doubt that Paley's murder was especially heinous, cruel and depraved.

"The panel unanimously concludes, beyond a reasonable doubt, that this aggravating factor has been proved," states the decision written by Judge Jackson following the hearing. "It is inconceivable that the insertion of a knife or other sharp object into a woman's vagina, creating among other wounds what the surgeon described as an almost surgical incision three inches in length, and resulting in massive vaginal bleeding, could be classified as anything other than especially heinous, cruel or depraved.

 

"The wounds to the vagina were inflicted while Ms. Paley was unconscious because of the severe injury to her brain. And after inflicting the wound, Mr. Riggan attempted to hide her body and left her to die, lying in a pool of blood resulting both from the vaginal injury and the head injury. This panel finds this conduct to be disgusting and outrageous."

Step Two: The second step in the death-penalty process is the presentation by the defense of "mitigating factors"--essentially anything about the defendant, including his background, that demonstrates why he should not be killed for murdering someone else.

Here the defense had plenty to work with.
Riggan's family was grossly dysfunctional, according to testimony from both his sister and a psychiatrist. His mother's first two children were fathered by her brothers. His father drilled a hole in the bathroom ceiling so that he could watch his stepdaughters, daughter and granddaughters. His uncle was said to have sexually assaulted several of the females, including Riggan's sister, stepsister and aunt. They all lived in squalor, with no one cleaning up the mess except for Riggan's older sister, who purposely got pregnant at age sixteen so she could marry and leave.

There was an intimation that Riggan himself had been tied up and sexually assaulted by a minister when he was young.

When he was seven, Riggan's face was horribly burned, which resulted in a great deal of teasing at school. Starting at the age of nine, he was afflicted by a mental disorder that caused him to defecate uncontrollably.

The psychiatrist painted a portrait of a boy who knew he needed help and sought it at various Iowa mental-health facilities. But Riggan wasn't supported by his parents in this endeavor. While he was growing up, his only friend was a dog named Goofy. And his only reason to believe that his mother loved him (she apparently never said the words) was because she didn't abandon him.

Riggan was such a desperately lonely man that in the Jeffco jail, he adopted an ant as his pet. "I find that incredibly sad," said the psychiatrist, who'd diagnosed Riggan as having an antisocial personality disorder.

But prosecutor Hall, while conceding that Riggan's childhood was deplorable, got the psychiatrist to agree that his background "explains but does not excuse" his actions. Riggan knows right from wrong, she conceded, but often chose the latter in adulthood.

There is no burden placed on the defense to prove its mitigating factors. Still, his attorneys submitted one more: Riggan had no significant prior criminal history.

Step Three: After the aggravating and mitigating factors are laid out, the panel compares them. And only after it decides that the mitigating factors do not outweigh the aggravating factors does the panel move to step four: the decision as to whether the defendant should die or spend the rest of his life in prison.

The judges determined that Riggan's case moved past the third step, too.
"We unanimously conclude that the mitigating factors described above do not outweigh the aggravating factor proved in this case," Jackson wrote of their decision.

"Mr. Riggan's upbringing, and in particular the lack of emotional attention and support from his parents, are nothing short of tragic. By the same token, Mr. Riggan was 37 years of age when he committed this offense. Whether the circumstances of his upbringing might possibly outweigh the heinousness of the crime had the crime been committed in, for example, his teenage years is doubtful, but at least possibly arguable. This history cannot, however, serve to mitigate or excuse his crime against Ms. Paley."

Step Four: And so the judges moved on to the fourth and final step.
They'd spent three days listening to the lawyers' arguments and the witnesses' testimony. They'd had the trial transcripts to refer to and had also been able to query the lawyers. Judge Jackson had even adopted the unusual practice of frequently interrupting the attorneys' statements to ask questions and pose his own theories on the murder.

Then, after closing arguments, they'd deliberated, and Jackson had written their decision overnight.

On April 15, the three judges returned to the courtroom, and Judge Plaut began to read the decision. As he worked his way through the judges' thoughts on the first three steps, Hartley and Chambers sat at the defense table with their heads bowed and their eyes closed.

 

They had beaten the worst of the charges at trial and for several days deadlocked the jury over the second charge--until the vaginal injury did them in. As thanks for their efforts, they had been abused by their client, who at one hearing threatened to spit on them. Now they looked as if they were praying for him.

At the prosecution table, Hall and Easter slumped in their seats. At a trial that could have gone either way, they had convicted Riggan. But they wouldn't win a death sentence unless the panel of judges did what no Colorado jury had done--send a man to death row on a felony-murder rap.

As Plaut continued to read the decision, it appeared that the defense attorneys complaining about the new system might well be right: The judges could be setting a new, lower standard for what justifies a death sentence.

But then Plaut declared: "We unanimously conclude, beyond a reasonable doubt, that a sentence of death is not appropriate in this case."

At the words "not appropriate," tension drained from Hartley's body. His eyes still closed, his hands groped for a glass of water. In closing, he'd admitted that he had indeed threatened to rip Riggan's "fucking head off." That was the only language someone as damaged as his client would understand, he said. And he'd begged the panel "not to let it end for Bob Riggan."

Riggan, who was back in court to hear his sentence, turned his head quickly, as though slapped.

The prosecution sat unmoving as Plaut continued to read. Their job was done.
"First and foremost," Plaut continued reading, "we note that the jury that convicted Mr. Riggan of felony murder was unable unanimously to agree that Mr. Riggan committed the crime of first-degree murder after deliberation.

"Our system of justice is based upon the jury system. Just as we must have tremendous respect for a jury's verdict of guilt or non-guilt, we must have respect for the fact that the jury that heard the evidence in this case was divided and deadlocked on this enormously critical issue.

"We note and take comfort in the fact that the only available alternative is a life sentence without the possibility of parole. Mr. Riggan was convicted by the jury of first-degree felony murder. It is, in our view, entirely appropriate that he 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 [intentionally] 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."

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