May 10, 1999
"Now that the facts have been determined, the presumption of innocence is gone, and Francisco Martinez Jr. sits before you a convicted rapist and murderer."
Deputy District Attorney Ingrid Bakke catches the people gathered in the courtroom in mid-murmur, like a play's narrator just before the curtain rises. Those in her audience--the families and friends, the attorneys, the judges, the defendant and the curious--grow silent as they turn their eyes to her. Many already know Bakke's next line, having heard it just a few weeks ago:
"The court must now shift its focus from the crimes committed to the evils that have been suffered."
This is the fifth time Bakke has opened the prosecution's case against a member of the Deuce-Seven Bloods, who raped, tortured and murdered fourteen-year-old Brandy DuVall. In three weeks, it will have been exactly two years since the girl's savaged body was found next to Clear Creek a few miles up the canyon from Golden; it's been almost a year and a half since the first trial of one of her killers.
This is the second time Bakke has made her pitch to a three-judge panel that the death penalty be imposed for one of the killers. In April she uttered the same words at a hearing for Francisco's childhood friend and fellow Deuce-Seven member, Danny Martinez Jr.
Barring a conviction or sentence being overturned at the appellate level, this is the last time Ingrid Bakke will have to deliver a speech on behalf of Brandy DuVall. And for that, she is glad.
"Words fall short to describe the terror and the horror" of Brandy's last few hours, "what this man," she says, jabbing a finger toward the defendant, "did to a fourteen-year-old girl." A murder that was preceded by acts committed to "humiliate and torture Brandy...and satisfy the twisted whims of Francisco Martinez."
A slight shudder runs through Brandy's relatives, seated in the first pew behind the prosecution table; arms drape protectively around shoulders, as if preparing for impact. Here it comes again. In the spectator sections on both sides of the aisle, hands wipe at the first tears of the day.
Twenty-five-year-old Francisco displays no emotion as Bakke condemns him. His dark-brown eyes show neither anger nor denial nor bravado. Only occasionally does he glance at his accuser, and then he looks away again, as though he doesn't think this conversation has much to do with him.
Of all the gang members involved in Brandy's rape and murder, he has been portrayed as the most vicious and cold-blooded. Even Danny's lawyers labeled him "an evil man," as their own client--his friend--sat mute. Although he doesn't look particularly evil, some women in the spectator section claim they can see it in him. But there are women on the other side of the aisle--sisters, girlfriends, his wife--who say that's not their "Pancho"; his mother, Linda, grieves for him in the hall.
For two years, this drama has been filled with images of good and evil, of heaven and hell. Of angels and devils.
A large steel cross, erected by Brandy's family, stands at highway mile marker 269.6 in Clear Creek Canyon, where the gang stabbed and dumped Brandy's half-naked body on May 31, 1997. And many in the courtroom today recall the dusty image of outstretched wings on a fifth-floor courthouse window during Francisco's trial last August--surely left by a pigeon attempting to fly through the pane, but viewed as a sign by some leaving the courtroom. When they saw it, they crossed themselves.
The religious imagery started with Jose Martinez, the infamous "Uncle Joe," at whose Adams County house the gang members brutalized Brandy. When confronted, Martinez told the police that the young men who committed the acts "was possessed by the fuckin' devil." The only piece of physical evidence tying Brandy to that house and the gang was a prayer card that the girl's grandmother, Rose Vasquez, had given her, which Jose hid after the gang left with Brandy. The card depicted a hand punctured by a nail wound, with the inscription: See, I will not forget you. I have carved you in the palm of my hand.
The prosecution had seized on the theme. To explain to jurors the deals given to some of the gang members in exchange for their testimony, they'd relied on an old adage: "Crimes committed in hell do not have angels as witnesses." And without angels for witnesses, the only way the government could secure justice for Brandy was "to make deals with the devils."
They'd made their deals and then tried the three remaining defendants who neither asked for nor were offered plea bargains for the hell they put Brandy through. Frank "Little Bang" Vigil Jr., now seventeen years old and in prison for the rest of his life. Twenty-seven-year-old Danny "Bang" Martinez Jr., in prison for the rest of his life. And now, finally, Francisco "Pancho" Martinez Jr., who one way or the other will spend the rest of his life in prison...although if the prosecutors have their way, it will be a short stay.
When this hearing is over and the judges have rendered their opinion, there will be no more devils to deal with for the murder of Brandy DuVall. Instead, those who've lived with this case, who've spent two years in judicial purgatory, will be left to deal with their own private demons.
Jefferson County judge Michael Villano, who as the presiding judge at Francisco's trial sits on this panel, had been right on target at the March sentencing of government witness Sammy "Zig Zag" Quintana Jr., when he noted that this crime had forever altered the lives of many people. Not just Brandy and her family, or even the young men and their families. The judge also included the attorneys and court personnel, including himself, and particularly the jurors, who had been yanked out of their unsuspecting, everyday lives and forced to listen to tales of atrocities that brought many of them to tears.
To do what she is doing now required a lot of soul-searching for Bakke. As a young prosecutor in the division that deals with crimes against children, she'd convinced herself that she could ask for the death penalty without batting an eyelash. But that was before she'd been assigned to her first capital murder case. This case.
Suddenly, she'd realized she didn't know where she stood on the death penalty. In the nearly two years she'd worked on the case, Bakke had gone back and forth; she hadn't really resolved the issue until shortly before Danny's sentencing. But as she assembled the so-called aggravators--those particularly cruel or unusual aspects of the murder that the government uses to spell out the need for a lethal injection--with her two colleagues, she came to believe that the punishment fit the crime.
By the time she wrote the opening for Danny's sentencing, Bakke saw little difference between Francisco and Danny. Like everyone else, she initially had been caught up in the "co-conspirator" issue: Was Danny as culpable--and therefore as deserving of death--as Francisco, the man who'd actually inflicted the fatal wounds?
But no more. Ultimately, Bakke realized that whatever he'd derived from the crime, Danny's participation was simply different from Pancho's. The words came from her colleague Mark Randall, spoken during a meeting to coordinate her opening with his closing, but she agreed that comparing Danny to Francisco was like looking at "different shades of black."
Still, she'd told friends, it gave her a strange feeling when she wrote down the last line of her opening: "The People respectfully request that you sentence Danny Martinez Jr. to death." And though she'd felt comfortable delivering that line, there was no joy in the asking.
The three deputy DAs--Bakke, Randall and Hal Sargent--were worn out from the workload, particularly keeping up with the several hundred motions filed by Francisco's lawyers, more than ten times the number filed by Danny's. Most of the motions contested the constitutionality of the three-judge panels, attacking from every conceivable angle the 1995 Colorado statute that had established them. Others seemed frivolous, such as one motion concerned with 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 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's workdays had begun at six in the morning and continued until ten at night. There was never any downtime; another hearing or trial or sentencing always loomed just a week or two away. None of them had taken a real vacation in nearly two years. Even weekends were spent working.
The emotional demands were just as wearing. The lineup of three trials and many other hearings brought the prosecutors closer to the victim's family than they normally would have been. It was hard trying to keep the family's spirits up while working to stay focused.
The prosecutors had all had dreams and nightmares about the case. The crime. The people. The testimony. All of it looping through their minds on automatic rewind.
Doing what needed to be done had grown progressively harder. Just looking at the photographs of Brandy's mangled body brought back all the horrors.
The case had even changed the way some people looked at them. Bakke noticed that defense lawyers she'd once been friendly with were going out of their way to avoid talking to her. She and her partners had crossed some line from adversary to enemy.
They all have their own devils to deal with.
But now Bakke puts them aside as she tells the judges that the state will be trying to prove, beyond a reasonable doubt, five aggravators. They are the same five it attempted to prove for Danny: that Francisco caused the death of Brandy "in the course of or in furtherance of or flight therefrom" a felony--in this case, assault, sexual assault and sexual assault on a child using force; that Francisco intentionally killed a kidnapped person; that Francisco was party to an agreement to kill Brandy; that Francisco killed Brandy to avoid lawful arrest or prosecution; and that the murder of Brandy was "especially heinous, cruel or depraved."
Then she outlines the atrocities the state will lay specifically at Francisco's feet. It was Pancho who removed Brandy's clothes, picked her up and carried her to the back bedroom after she was "delivered" to 3165 Hawthorne. It was Pancho who sexually assaulted her with a beer bottle. It was Pancho who tried to get Danny's uncle to participate. "Want some head, Uncle Joe?" Bakke mimics the man sitting twelve feet to her right.
It was Pancho who tried to have anal sex with Brandy. And when the girl complained, her anus was sliced open in the bathroom while she was alone in there with Danny and Pancho. Then it was Pancho who took her back to the bedroom and shoved a broom handle into her bleeding rectum.
"He put it in her hard," Bakke says, "and Brandy screamed." When Brandy lost control of her bowels, it was Pancho who declared--and here Bakke nearly yells--"'You shit on my homeboy's shoes, bitch,' and kicked her in the chest."
The little cries, sniffles and sounds of misery in the background at all these legal proceedings have begun again. Brandy's mother, Angela Metzger, sobs, her shoulders shaking, as Bakke recounts how Pancho kicked her daughter in the head when she made the mistake of admitting that she knew where she was. And still the prosecutor goes on.
It was Pancho who, tired of Brandy's pleas for mercy, began to stab her on the drive into the mountains. Pancho who tried to strangle her into silence. And, at last, Pancho who finished the job by stabbing her repeatedly in the neck while Sammy Quintana held her down.
Bakke quickly outlines the testimony that Villano and the other judges on the panel--Robert Hyatt of Denver and Deanna Hickman of Arapahoe County)--will hear during the prosecution's case. The victim-impact statements. Pancho's other crimes, including the beating of a former girlfriend just three days before Brandy's death. His continued penchant for violence even while incarcerated. And his harassment of Brandy's family during the trial.
If there is no joy in her voice when Bakke at last comes to her final line, there is also no hesitation. "The People respectfully ask that you sentence Francisco Martinez Jr. to death."
The first time Bakke made that request, two of the three judges agreed. Because one did not, Danny Martinez Jr. was spared the death penalty. Danny's fate was announced May 8, two days before Francisco's hearing was set to begin.
Jefferson County District Court Judge Leland Anderson, who had presided over Danny's trial, and Arapahoe County District Court Judge Timothy Fasing had voted in favor of the death sentence. The two jurists agreed that the prosecutors had proved three of the five "aggravators" they had proposed.
One was that Danny was a party to an agreement to kill another person. Indeed, they said, he "conducted discussions in the presence of Brandy DuVall as to who should kill her and how she should be killed."
They also concluded that Brandy had been murdered "for the purpose of avoiding or preventing lawful arrest or prosecution...He was so fearful of arrest and prosecution," the judges wrote, "that at one time he suggested that everyone should be 'taken out,' including even members of his own gang...The motivation and purpose of these discussions was to eliminate Brandaline DuVall, the primary witness to the defendant's criminal behavior and that of his cohorts."
And they determined that Danny could be held responsible for killing Brandy "in an especially heinous, cruel or depraved manner." First, they concluded that the legal language of that aggravator "does not expressly require that the defendant himself perform the lethal physical acts resulting in the death of another person...What is required is proof that the defendant 'committed the offense'," the offense being murder in the first degree after deliberation.
They noted that after Brandy's anus had been cut open "the defendant inserted his penis inside her" and later "laughed when Francisco Martinez rammed a broom handle up her rectum...The child was screaming and begging to be allowed to go home. The defendant and other members of the Deuce-Seven disregarded her cries...Though the defendant's conduct cannot be measured by the acts of Francisco Martinez, the defendant did not intercede in any way to prevent or object to this brutal assault by Francisco Martinez, his lifelong friend and gang associate."
The judges further concluded that "the defendant handcuffed the naked, bleeding child and threw her into a corner with a hood over her head. Trapped in darkness, the child was forced to listen as the defendant conducted and directed the gang's discussions in her presence as to the manner in which she should be executed."
Then, during the ride into the mountains, "the defendant restrained the child as Francisco Martinez leaned from the front passenger seat of the vehicle and stabbed her repeatedly in the midsection." After that, Danny did not "interfere, object or attempt to dissuade" his friend from stabbing Brandy 28 times and heaving her body down the embankment onto the rocks below.
"The defendant never suggested that the child's life should be spared, or attempted in any way to provide physical or emotional support to the child in the last hours of her life."
The two judges found, however, that the state had not proved beyond a reasonable doubt that Danny had intentionally killed a kidnap victim. Their hangup was the word "intentionally." Although they agreed that Brandy had been kidnapped--she was taken against her will from Uncle Joe's to her execution--they concurred that Danny could not have "intended" to kill her because he did not inflict the fatal wounds.
Nor would the judges accept the aggravator that Danny intentionally killed Brandy "in the course of, or furtherance of, or immediate flight therefrom" committing a felony. Once again--although the judges noted the prosecution had proved that Danny committed first-degree assault, first-degree sexual assault and sexual assault on a child by use of force--they balked at the word "intentionally."
The two judges rejected most of the mitigators offered by the defense, including its argument that Danny's participation in the murder "committed by another" was "relatively minor." Nor could Danny blame his conduct on the influence of drugs and alcohol; no one made him drink that night, they said.
Under the catchall "any other evidence...that bears on the question of mitigation," the judges had sympathized that "the defendant endured a difficult and even tragic childhood without the support of a traditional family unit or paternal bonding. Almost from birth, he and his siblings had to adjust to changing environments that were largely unstable, underprivileged, non-nurturing, emotionally injurious and even dangerous." They had taken his childhood into account during their deliberations, along with his apology to the family of Brandy DuVall.
Taking the third step, the judges concluded that the aggravators outweighed the mitigators. This made Danny eligible to be considered for the death penalty.
At this fourth step, they noted that Danny's history and background included a long series of decisions to engage in criminal conduct. "The defendant and his brother, Antonio Martinez, established the Deuce-Seven Crenshaw Mafia Gangsters, a subset of the Bloods, in the middle of Crips gang territory," they noted--an act that "evinced an attitude of reckless indifference to the possibilities of violence and confrontation between gangs...The defendant grew up in a gang subculture of violence, and not only adopted its value system, but promoted and encouraged others to do the same."
Danny had his opportunities to avoid the path he was on, they determined. "Even on the night in question, defendant had a chance to leave his uncle's house with his brother, Antonio, but he chose instead to stay with his gang."
The judges recalled that in his statement to Brandy's family, Danny said he couldn't explain what happened in the early-morning hours of May 31, 1997. "But this is not a case about simply making a few wrong turns in life. Many people are raised in difficult circumstances similar to those which confronted the defendant in his formative years. These circumstances do not inevitably lead to a life of crime as chosen by the defendant."
Brandy was only fourteen and petite, the judges wrote, "unable to resist the assault and preparations for her death in any significant way. Her torture was systematic, complete, dehumanizing. The criminal acts committed against her were abhorrent, vicious and merciless."
The judges had not bought into the lawyers' attempts to deflect scrutiny of Danny's culpability by highlighting the criminal actions of his friend, Francisco. "His individual participation in her murder is not rendered marginal merely because he did not hold the murder weapon as it penetrated the victim's body...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."
In fact, the judges agreed that it was constitutionally permissible for a complicitor "under appropriate circumstances" to be executed in a capital case. Such were the circumstances here, where "his participation was substantial and his intent was murderous."
"Finally, we acknowledge the enormous loss and tragedy suffered by the family of Brandaline DuVall. This panel is without words to adequately acknowledge the personal suffering occasioned by the senseless death of this fourteen-year-old girl. The only adequate response in light of the extreme circumstances of this case is a measure of justice in fair and equivalent proportion to the actions of the defendant.
"For this reason, District Court judges Leland Anderson and Timothy Fasing would impose a sentence of death upon the defendant."
But Judge John Coughlin of Denver did not agree. He'd accepted only one of the prosecution's aggravators: that Danny conspired with others to kill Brandy. Even here, Coughlin was troubled by the fact that the jury did not find Danny guilty of conspiracy to commit murder, a charge that was never brought by the prosecution. He decided, however, that if it could be assumed that the panel had the constitutional authority to determine this on its own, then he could accept it.
He rejected the other four aggravators, however. Like the other two judges, Coughlin wouldn't go for any of the aggravators that stated the defendant had "intentionally" killed a witness or kidnap victim. But he also couldn't decide that "the defendant committed the offense in an especially heinous, cruel, or depraved manner."
Coughlin acknowledged that this described what had happened to Brandy. However, instead of interpreting "offense" as the actual charge of first-degree murder after deliberation, as his two colleagues had, he decided it meant the act of stabbing Brandy. And, contradicting his colleagues, he asserted that the Colorado Supreme Court "clearly holds that the death penalty may not constitutionally be imposed on a defendant convicted on a complicity theory."
The judge then turned to step two, where he was much more generous allowing the defense mitigators. Because he again interpreted "offense" as the inflicting of the fatal wounds, he determined that Danny wasn't "a principal in the offense" and that his participation was relatively minor. He also accepted as mitigation witness testimony that Danny was drunk on that horrible night.
"Danny Martinez would be a threat to society if he was released from prison," the judge determined. But he would not be a threat to society if put in prison for the rest of his life.
Coughlin decided the mitigators outweighed the single aggravator he'd allowed. That meant he wouldn't even have to proceed to step four--the question of whether Danny deserved the death penalty. And since a death-penalty sentence must be unanimous, Danny Martinez's life was spared.
Once again, a defendant had avoided a death sentence, this time by a minority voice--an occurrence that, when twelve-member juries were in charge of the decision, so frustrated prosecutors that they'd pushed to give it to judges instead.
The legislature had passed that law in 1995; the first death-penalty hearing before judges was finally convened this April, for the sentencing of Robert Riggan. In the intervening years, defense attorneys had complained that the three-judge panels would essentially rubber-stamp death-penalty requests. But so far, the panels were three-for-three in sentencing defendants to life in prison without parole.
On the same day Danny's life was spared by Coughlin's vote, another panel in Denver unanimously concluded that they couldn't sentence Jacques Richardson to death. Richardson, a thirty-year-old serial rapist, had been convicted for the murder of Capitol Hill resident Janey Benedict; she had been strangled by the ropes that Richardson had used to hog-tie her.
As with Riggan, the Richardson panel noted that the jury had been unable to conclude that the defendant "intentionally" killed his victim. In their opinion, the judges wrote that while Richardson was "a morally culpable, despicable and dangerous human being...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."
So far, the panels were bucking the notion that judges would easily hand down one death sentence after another. But with the two-to-one vote on Danny Martinez, the margin was getting slimmer. And Francisco Martinez was up next.
You don't know whether the jury convicted Francisco Martinez of first-degree murder as a complicitor or the principle.
"Because of a lack of evidence in this case, you," defense attorney Patrick Ridley says, pointing at the judges, "don't know if it was Francisco Martinez," he says, now pointing at his client, "who stabbed Brandy DuVall to death."
Ridley must counter whatever impact Bakke's opening had on the panel. It may not have been much: Dramatic opening statements are for jurors who can be counted on to let their emotions govern them as much as the law. Not judges.
Judges are supposed to be able to put aside not only improper legal arguments, but their own feelings while making decisions following the stone-cold letter of the law. They aren't supposed to be swayed by impassioned pleas that have no legal merit. They may, in fact, become irritated by over-exuberant lawyering, and there are few things an attorney fears more than an irritated judge.
Then again, and despite all evidence to the contrary, judges are human. So both Bakke and Ridley, a tall, Ivy League-looking sort, have seen fit to add a dash of melodrama to their statements.
Ridley, however, begins by concentrating on two arguments. The first is that Francisco was just one of seven gang members who all had a hand in Brandy's death and that to single him out for the hardest punishment would be "morally and legally" unfair.
And second, that the prosecution wasn't sure enough of its theory that Francisco, not Sammy Quintana, inflicted the fatal wounds to leave out the "complicitor language" when they asked the jury to convict Francisco of first-degree murder after deliberation. Such language, he notes, allowed the jury to hand down a conviction without having to decide that Francisco did the stabbing.
Before opening statements, deputy DA Sargent had successfully countered a similar argument by legal expert Dean Neuwirth, who demanded that the judges stop the proceedings and sentence Francisco to life in prison. It had always been the government theory, the prosecutor said, "that Francisco Martinez is the one who stabbed her to death," and that was the way the case was presented to the jurors.
The judge had agreed. But now, Ridley raises the argument again. All through this case, the defense has refused to give an inch.
It's been a long haul for the young defense attorneys, too. While Ridley and his colleagues, Dave Kaplan and Neuwirth, have had only one trial and now this sentencing in the DuVall homicide, they've been up against the considerably larger resources of the Jefferson County District Attorney's Office. In fact, Neuwirth was brought in to combat the presence of an attorney from the Colorado Attorney General's Office as well as the Jeffco DA's appellate expert, Donna Reed, at the prosecution table.
Someone had to research, write and argue those hundreds of motions the prosecutors complain about. But throw enough stuff at the wall, and something might stick.
The case against Francisco had been overwhelming, as evidenced by the two hours it took a jury to convict him. The arguments stacked against him at the death-penalty hearing looked almost as insurmountable.
Even the prosecution had never said that Danny stabbed Brandy. Then there was all that stuff about the broom handle, the bloody knife in the bathroom, and kicking the poor girl. Even a judge was going to have a hard time blocking that out.
But the defense attorneys would throw all they could up there. In Danny's case, Coughlin was proof that it only took one judge to see things a little differently. For example, maybe one of the three on Francisco's panel would hesitate to make such a decision based on the accusations of Sammy Quintana, one of the devils who'd gotten a deal in exchange for his testimony.
The defense wasn't counting on it. If something stuck, great, but in every motion turned down, every objection overruled, there might be something that would catch the eye of a judge at the appellate level. The lawyers were trying to ensure that even if the panel sentenced Francisco to death, the fight would not be over.
Emotionally, the defense team hadn't had an easy time of it, either. They weren't immune to the tears shed by the victim's family; they'd had to look at the photographs and listen to testimony describing their client's monstrous acts. The images and words would remain with them long after their case files began gathering dust in some storage room.
Still, this was about whether the state should be in the business of executing one of its citizens. It was a battle they fought with the zeal of those who believe they hold the moral high ground against overwhelming odds. And if some people didn't like the way they did their job, too bad--those people weren't trying to save a young man's life.
That young man now watches his attorney, turning occasionally to look at the judges as if to gauge their reaction. The day had begun with Francisco asking the judges, through his attorneys, for permission to return to his cell; he didn't want to hear the testimony.
Although some of that testimony would be presented on his behalf, Kaplan had noted that it "is not particularly flattering to his family or upbringing" and that Francisco would be uncomfortable listening to it.
Several members of Brandy's family shook their heads at this request. They suspected that what Pancho really didn't want to hear was how the girl's death had affected them. That didn't seem fair. It certainly hadn't bothered him to hear Brandy's screams and pleas for mercy before he stabbed her. And then this man had smirked and laughed at them, mouthing obscenities during his trial.
Deputy District Attorney Sargent had objected to Francisco's request. "He has no constitutional right to be absent," he told the court. "What we're going to hear throughout these proceedings will be painful for everybody."
Kaplan countered by contending that a defendant's right to waive his presence was up to the court's discretion. But Villano, who'd come out of retirement to preside over this hearing, said he wasn't prepared to rule. Francisco was going to have to stay and listen to the opening statements.
In their effort to execute his client, Ridley now says, the prosecutors "want to demonize and dehumanize" Francisco Martinez. But after the judges get to know his client and the life he lived since childhood and "the forces" that formed who he became, they will realize Francisco had "a relatively small amount of moral culpability" compared to the others.
"How do you take into account so many intangibles?" Ridley asks. What role did alcohol play? What part could be attributed to "another drama" that was taking part in the house--the "quoting," or beating into the gang, of Jacob Casados? How much did all that "testosterone" have to do with what happened to Brandy DuVall?
Ridley points a figurative finger back at Danny Martinez, just as Danny's lawyers had done a few weeks earlier to Francisco. "How do you account for the leaders who make the decisions and call the shots?...No one disputes that Danny Martinez was the leader and founder of the Deuce-Seven with his brother, Antonio.
"Given the madness, complexity and chaos of the evening," he warns, it would not be legally or morally right "to pick out one to punish with death."
Like Danny before him, Pancho sits quietly and listens to his attorney badmouth his best friend. Back when it might still have been possible for Danny to plead guilty in exchange for life in prison, thus avoiding a potential death sentence, Pancho had told his attorneys to tell Danny that it was all right with him if Danny cut a deal.
Although prosecutors never made the offer, anyway, Danny balked at letting his friend face a death sentence alone. During the hearings when their lives were on the line, though, neither man protested their lawyers' condemnation of the other.
Danny, says Ridley, echoing the prosecutors' arguments from the last hearing, was "throwing the party at Uncle Joe's house...He was the one who had the most and greatest variety of sex."
Ridley also condemns Sammy Quintana, noting that he'd already killed another young woman, Venus Montoya, before Brandy was murdered. Venus was an unintended target, he adds. "He intended to kill Salvino Martinez," another Bloods gang member, "because Salvino Martinez snitched on the leader of the Deuce-Seven, Danny Martinez."
Sammy killed two girls and got off with 96 years in prison by turning state's evidence. Francisco, he points out, killed "only one." There is even evidence--a cut mark on Sammy's hand--that he stabbed Brandy himself, Ridley says.
As Ridley labels Sammy a killer and a liar, Jim Aber, the chief deputy state public defender, listens with his head bowed. He was the lawyer who put the deal together for Sammy Quintana, whose "truthfulness" on the witness stand he'd praised at Sammy's sentencing. In fact, he'd told Villano that he'd seen "more remorse and rehabilitation than I think in any other client I've ever seen." And yet he now sits on the defense side of the aisle as his client is vilified.
"We're not telling you that Francisco Martinez is not legally responsible for the death of Brandy DuVall. He is...he's been convicted," Ridley says. "Mr. Martinez should spend the rest of his life in prison." (This is just posturing, of course, since an appeal of Francisco's conviction is already in the works.)
But what put Francisco in that position? Ridley says the defense will offer an overview of his client's wretched childhood as a mitigator, although it's "politically unpopular" to make such a connection for why boys join gangs. Such testimony will include his mother's suicide attempt in a local church. "Think of the impact on an eleven-year-old Catholic boy who had just had his first Holy Communion."
Francisco was not "bad at four, not evil. When he was eight or nine, he was not a demon," Ridley says. He outlines a childhood marred by violence between his parents, the family's abandonment by his father when Francisco was four, his witnessing of a murder at eight and finding the nude, dead body of woman in a neighborhood dumpster at ten.
The boy slept in his mother's bed until she remarried, when Francisco was twelve. After that, he curled himself up on the floor outside her bedroom and cried himself to sleep. And soon, Francisco moved out of his house and into the home of Danny and Antonio Martinez, "neighborhood friends whose mother was a heroin addict...and that was still better than his own house."
Turning slightly toward Brandy's family, Ridley says he would be remiss if he did not comment on the "unfortunate incident" during Francisco's trial. His client's behavior was defensive and born of frustration after hearing so many bad things said about him in the prosecution's opening statement.
"I don't think he was meaning to be disrespectful," Ridley now says to Brandy's mom, Angela. The actions stemmed from the depression and post-traumatic stress syndrome from which Francisco suffers--conditions psychologists will address during the hearing.
A sentence of life in prison without the possibility of parole--the sentence received by Danny Martinez and Frank Vigil--would be just punishment, Ridley says. It would be vengeance only "that requires he die by lethal injection."
After lunch, Francisco is granted his wish to wait out the hearing in his cell. Before he is handcuffed and led away, Villano assures him that he's free to return to the courtoom "anytime you want."
Now Sargent begins calling up members of Brandy's family to express what her death has done to them. But the one person who should listen to them is gone.
Brandy's grandfather, Paul Vasquez. I needed her and she needed me.
His wife, Rose, for whom Brandy received her middle name. I loved her deeply and miss her terribly.
At Danny's trial, the defense lawyers pretty much sat in their seats during the victim-impact statements and listened politely. But these are different lawyers.
As Rose begins to talk about how painful it has been for her to imagine what Brandy suffered, Neuwirth objects. Such statements should be limited to the sort of person the victim was and what her loss meant to the family, he argues, not about the crime itself. That would be a violation of his client's right to due process.
Sargent counters that the horrific nature of the crime is part of what the family has to deal with: Not just Brandy's murder, but how she was murdered.
Judge Villano agrees with Neuwirth, however. Whatever Rose's mind has "conjured up" about Brandy's suffering will be considered speculation and ignored by the judges.
Tiny and in tears, Rose hesitantly--as though waiting for the defense lawyers to jump up again--finishes her statement for the last time. A cold stone does not satisfy the arms of a 74-year-old woman.
Just getting through the first day of testimony is an ordeal. After the family members speak, the prosecution calls on witnesses who can detail Francisco's many encounters with the justice system.
These include probation officers, halfway-house counselors and cops. They often are reading records written by others, provoking numerous objections from Neuwirth about the hearsay nature of such testimony. It doesn't allow Francisco, through his lawyers, his constitutional right to confront his accusers directly through cross-examination.
The prosecutors note that the rules of evidence don't apply at sentencing hearings. That means a certain amount of hearsay is allowed.
The objections are overruled. Neuwirth's frequent return to the same subject finally irritates Villano, who testily notes that he'd already ruled on the appearance of these witnesses prior to the hearing. "Let's get on with it," he says.
And they do. Among the day's witnesses:
Theodore LeDoux, a probation officer with Denver Juvenile Court, testifies that Francisco seemed to have a good relationship with his mother, Linda (combating the expected defense allegations that she was a bad mom), and that she tried to get her son out of the neighborhood after Crips shot at him in 1988.
Neuwirth gets LeDoux to acknowledge that Francisco had been called "Pancho" since he was a little boy and that it was not a gang moniker. He also gets him to admit that when Francisco was in detention, his mother had her telephone service blocked so he couldn't call home.
John Malloy, a former youth corrections caseworker for the state Department of Corrections, testifies that when Francisco was in detention in 1989 after his part in a gang shooting by Antonio Martinez, the young man had stated that he "likes to hurt people." Francisco "believed in gang ideation," he adds.
Malloy is uncooperative when Kaplan, on cross-examination, tries to point out that Francisco had "done well" in the structured environment of the detention facility. This would go to the defense argument that Francisco would not be a problem if allowed to live in prison. But Malloy will concede only that the first three months were "the honeymoon period," after which the defendant "slacked off."
Detective Joseph Catalina of the Denver Police Department relates how Francisco was the prime suspect in the March 23, 1993, shooting of two fellow gang members, Sam Garcia and Gary Rodriguez. The shooting had been witnessed by David Warren, a co-defendant in the DuVall case.
Garcia had positively identified Francisco from a photo lineup, Catalina says, recalling Garcia's comment: "I'm almost dead, and that's the guy who tried to kill me. Yeah, Pancho. Francisco Martinez." But the men had later recanted, and Francisco was never prosecuted.
May 11, 1999
The sullen young Hispanic man in the orange jail jumpsuit shakes his head. "I'm not going to talk. I want to go back to my cell."
David Warren has been called to talk about the 1993 shooting discussed the day before. Although he'd testified against Frank Vigil, Danny and Francisco at their trials, he's now refusing to say any more.
Sargent gets him to admit that he's not happy. He thought his deal was that he got to do his time out of state--a matter the prosecutor is still trying to arrange--and he wasn't pleased when Villano sentenced him to the maximum, 32 years, in March.
But his current stance has more to do with fear than petulance. It was one thing to be a "snitch" at a trial; testifying against another prisoner at a death-penalty hearing takes matters to another level.
In their seats, Brandy's relatives groan. They recall that just two months ago, this man was on his hands and knees, crying and begging their forgiveness. Telling Villano all the things he'd tried to do to make up for his crime (which had included biting Brandy's breast while she stood in terror, handcuffed and hooded).
Now Warren won't budge, even when Villano threatens him with contempt of court. Finally, he's allowed to step down from the witness stand and is marched back to his cell.
The prosecution calls a more agreeable witness, Stacy Pike, a therapist who treated Francisco while he was residing in a halfway house after getting out of prison in 1995. She says that Francisco had been sent to her needing therapy for "alcohol abuse and anger management." Pike has worked with many violent offenders in her two decades as a therapist, she says, but Francisco was in a league by himself.
Early in the group sessions, she says, the participants were working on issues regarding their belief systems. They were asked questions that required yes or no answers. One question was: Do you believe you will be famous?
Francisco answered yes. When she asked him what was going to make him famous, Pike testifies, "He said he was going to blow away an entire gang."
With that in mind, Pike listened even more closely to Francisco's responses at the next session. This time the participants were asked about their favorite hobby. "He said his favorite hobby was shooting people," Pike recalls. "I hadn't heard that one before, so I asked him what it was about shooting people that he liked. He said that after he shoots them, he likes to watch their bodies twitch." Pike asked Francisco if he would shoot her. His response: "Oh, no, Miss Pike. I like you."
In another instance, the participants were asked to pick out nicknames for themselves; it was a way for them to get to know each other. The nickname had to begin with the letters of their real names. Francisco, however, chose "P" for Pancho. And he said he wanted to be known as "Psycho Pancho."
That was enough for Pike. She called Francisco's caseworker at the halfway house that allowed him out during the day to work and attend classes, and, she says, told him to have Francisco picked up by the Department of Corrections. In her opinion, he was homicidal and did not belong on the streets.
Over the course of her career, how often had she called a caseworker to have someone "taken off the streets?" Sargent asks.
"This was the second time."
"Do you scare easily?"
"Not after nineteen years," Pike replies.
"Did Mr. Martinez scare you?"
"Yes, he did."
On cross-examination, Kaplan notes that Pike didn't write on her report that she felt Francisco was "homicidal."
"I stated he was very dangerous," says Pike, who looks at Kaplan with what appears to be distaste.
"Right," Kaplan says, ignoring her hostility, "but not 'homicidal.'"
"I thought he was homicidal," she says.
Kaplan also observes that she never wrote anything down about "Psycho Pancho."
As Pike shrugs, Kaplan points out that according to her reports, Francisco got good marks for participation and cooperation in the group session. The caseworker's report noted that Pike had suggested Francisco get intensive individualized counseling, as well as continue in group therapy.
"I do not agree with the statement," Pike sniffs.
"He never got physically aggressive with you or anybody in the group," Kaplan says.
"No, he did not," she admits.
On redirect, Sargent asks if there was a reason she specifically remembers the nickname incident.
"Yes," Pike says and smiles. "I was surprised he knew that 'psycho' started with a 'P.'"
Another witness, a Denver police detective, recalls how Francisco and other members of his gang robbed two younger boys. Francisco, he says, was the first to pull a gun. A second detective testifies about a case concerning Francisco and a friend robbing two men of a keg of beer.
Then witnesses are called to testify about a May 1, 1997, shooting incident in which Francisco was the main suspect. Francisco's father-in-law, a man named Chico, had discovered that Francisco was carrying on an affair with his niece, Gina Ynostrosa, the first cousin of his daughter, Nicole.
According to testimony, Francisco had persuaded Chico's nephew, Toby Archuleta, to accompany him to Chico's home. There they were told by a roommate, Pedro Medina, that Chico wasn't home, and they left.
A short time later, someone came and shot Medina from behind in the left shoulder and lower back. Medina now tells the judges he never got a good look at the person who shot him.
But the police believed it was Francisco, who went on the run. By the end of the month, Brandy DuVall was dead.
During a break in the testimony, a catfight erupts on the defense side of the spectator section. There have been two camps of Francisco supporters over there: his family and a couple of girlfriends who have borne him children in one; his wife, Nicole, and her mother in another.
Nicole and one of the girlfriends get into it when the latter asks, "What you lookin' at, bitch?" George Anders, a retired bailiff who occasionally works when needed, has to separate them.
The deputies who provide court security request the women's presence in the hallway. There they lodge complaints against each other. One had slashed the other's tires. The other was giving dirty looks.
Nicole produces paperwork for a restraining order against the other woman. The wrong girlfriend's name is on the papers.
Villano is apprised of the situation, and he sternly warns the women to sit apart and not so much as glance in each other's direction. Otherwise, he says, they will be ejected from the courtroom for the rest of the hearing.
Gina Ynostrosa is called to the stand. She seems an unlikely candidate for an affair with a gang member. A pretty girl, she is studying criminal justice in college. Her father, now deceased, was a state trooper; one brother is currently a state trooper, and another is in the police academy.
She says a male cousin introduced her to Francisco--who was going by the first name of "Leroy"--in 1996. At the time, she didn't even know he was living in a halfway house; it wasn't until long after they'd become lovers that she realized who he really was: the husband of her cousin Nicole.
When she confronted Francisco, she says, he denied it at first. She stopped seeing him, but Francisco was persistent, and they resumed their relationship in January 1997.
In response to questioning by Randall, Gina testifies that Francisco was "very close" to his mother, who had a huge photograph of him on one wall and smaller photos of her son on the other walls. He'd never confided anything about any childhood traumas, she says.
She knew he was a gang member. For one thing, he had tattoos proclaiming that fact all over his body. But he didn't bring the gang over or use gang lingo around her. In fact, he became something of a school project for her...firsthand insight into a street criminal.
In late April 1997, Nicole learned about the affair, "which opened a can of worms." A few days later, Gina came home to find a nervous Francisco pacing around. He said the police were looking for him because of a shooting...the Pedro Medina incident.
After his mother called to say the police had been by her house looking for him, Francisco left. Gina didn't see him again for a couple of weeks, but he called plenty. Only this time, the nice-guy routine was missing. If she didn't answer the telephone, she says, he left "crude messages," such as "Who you out fucking? Bitch, where are you?"
On the evening of May 26, she was home alone with her son, asleep on the couch, when Francisco broke in. He straddled her and began punching her in the face and strangling her. "It was 'bitch' this, 'bitch' that," she recalls.
Gina blacked out. When she came to, her nightshirt had been torn off her body and was in shreds. Francisco was still in the home; when she asked, he let her see that her son was all right. But soon he left the apartment and got into a car with other young men.
Gina says she drove to Francisco's mother's house. "Look what your son did to me," she told her. But although her face was bruised and swollen and there were obvious finger marks around her throat, Linda "was not supportive...she said the bruise on my throat looked like hickeys to her."
But the cops believed Gina Ynostrosa.
Now Francisco was on the run for assaulting her as well. But he continued to call, asking what he had done that was so bad she felt she had to betray him.
Later, when she heard about his possible involvement in the killing of Brandy DuVall, she'd asked Francisco about it. "He said, 'Fuck that bitch. She deserved what she got.'"
"Did he say whose fault it was?" Randall asks.
"Her own," Gina replies. "He seemed bitter and angry about it."
On cross-examination, Kaplan points out that before the assault, Francisco was "trying to be a better person." Gina agrees. He was good with her son, she says, and often sent her flowers.
On redirect, Randall asks, "So Francisco was capable of behaving well?"
"Sure," she says.
"And he was also capable of assaulting you?"
The boyish-looking Randall practically blushes as he asks if Francisco made any peculiar sort of sexual requests.
"On a few occasions, he asked for anal sex," she replies. But she wouldn't agree to it.
Randall asks if Francisco's demeanor changed after she told the police about the assault. Her former lover became more gang-like, Gina concedes, and his language was filled with gangster talk. He reminded her that he had taken her address book following the assault. "He said, 'I know where your family and friends live. Make this hard for me, and I'll hurt you or someone you care about.'"
She pauses, then concludes, "He scared the shit out of me."
Once more. Just get through this one more time, Angela Metzger thinks, as the prosecutor announces that Brandy's mother would "like to make a statement to the court."
"Had to" would be more accurate. How can she "like" baring her soul, exposing wounds that never get a chance to heal before they're ripped open again? "Like" does not describe the feeling of standing in front of strangers, unable to control her tears, choking over the words of her misery.
Somehow, somewhere, Angela Metzger always finds the strength to do what must be done. She had bared, ripped and cried through three murder trials and half a dozen sentencings of the young men who had raped, tormented and killed her daughter. But it was not something she wanted to do--not even for revenge.
When the morning of each new trial or sentencing arrived, she only wished she could stay home, cloistered as she was most of the days between court appearances. She didn't want to see people. Or talk to them. She wanted them all to go away and leave her to her grief.
She wanted Brandy...but that wasn't going to happen.
Now her obligation was to bear witness. So Angela would get up, dress and head to the Jefferson County courthouse to listen one more time to what members of the Deuce-Seven Bloods gang had done to her little girl.
Then it would be the defense lawyers trying to excuse what had happened, blaming childhoods of abuse, bad neighborhoods, peer pressure, too much alcohol and testosterone...and, of course, negligent parents. They'd argue that the "tragic incident"--or some other generic term that blew past the reality of what was done to Brandy--was someone else's fault. Not their client's.
In the two years since she'd identified Brandy's body on the coroner's table--Wake up, baby. Wake up.--this was all that remained of Angela's life.
In a way, the slow machinations of justice had given her something to keep her going. There was always another hearing, another trial, another sentencing--another step as she fought to keep her head above the still-rising tide of her grief. She had no idea what would happen when the last of the legal proceedings was finished and there were no more steps.
Nor did she care.
Angela had no illusions that it would soon "be over." It would never be over. Some members of her family talked about getting on with their lives once Francisco was sentenced and urged her to do the same. She had her friends and family who loved her. And there was her new grandson, Brandon, named after the murdered aunt he would never know.
She loved them all and knew they meant well. But they weren't Brandy. Nor could they lift the enormous weight of guilt she felt. Discussion about what Angela should do "when this is over" had led to arguments, and she'd withdrawn even further into her shell. She came out only when she was called back to court.
At prosecutor Sargent's bidding, Angela now rises from the pew where she'd been sitting with her family. Once again, she'll try to explain the impact of a never-ending nightmare. She doesn't care what decision the judges reach. She hadn't been disappointed with the panel's decision to spare Danny; such things were in God's hands. And she feels for both of the mothers on the other side of the courtroom.
Either way--life without parole or a lethal injection--Francisco will not be hurting any more little girls. But Sargent, whom she trusts implicitly, has told her it's important. One last time.
As she stands trembling next to Sargent at the podium, Angela clutches the paper on which she's written what she wants to say. It will soon be two years since Brandy was killed. Sometimes it seems like a long time ago, but in May, the last month of Brandy's life, it always seems like yesterday.
Angela keeps her eyes on the judges. The prosecutors have told her not to state what penalty she thinks is appropriate or to address Francisco personally. But avoiding Francisco won't be difficult: He isn't here. Instead, Francisco is represented by three lawyers and an empty chair.
Angela doesn't want Brandy to become just another victim in one of those textbook cases the lawyers are so fond of spitting back and forth at each other. She doesn't want them to forget that Brandy was once a real little girl.
Already she can feel the tears, never more than a memory away, waiting to spill over. So she begins while she still can. "I want to tell you a little bit about Brandy," she says, looking up at the row of impassive judges.
"She was fourteen years old, and she was a shy person."
This is the only good thing about testifying: It gives Angela an opportunity to talk about the little girl she knew. The good student. The athlete. The teenager who was still shy about her body.
"And now I go to the mountain where she died," Angela says. "I pick up the rocks that have dried blood on them, and I put them in my yard, because I don't want them up there. I don't want people seeing them or walking on them or driving on them.
"And I have there to go, and I have her grave to go to and just sit there and talk to her, and I don't get to hear her calling me 'Mom' anymore, hear her voice or see her or hug her or...," she wraps her arms around herself and weeps, "Oh, God, she had the best touch."
With an effort, Angela moves on to thank God that the last words she and her daughter said to each other were words of love. "She loved me a lot. That girl loved me a lot, and I could feel it, and now I don't feel it no more. And now I don't even care about life. I don't care about nothing."
Her husband has had to suffer the loss of both his wife and stepdaughter. "I look at him and his boys," Angela says, "and I think, 'Why? Why do you get your kids?' Why does he get them, and I don't get mine? What did I do? She didn't do nothin'. She's just a little girl. And how come everybody else gets their kids, and I don't get to see mine, or touch mine, or tell her I love her?"
Failure eats at her every day. Parents are supposed to keep their children safe, and she didn't. "Everyone knows that that's the way it is...But I couldn't save her. I couldn't help her. I couldn't comfort her."
Maybe, she says, if she's good, there'll be a chance to atone in the future. "If I'm lucky enough, I'll be with her again, because I know she's in a good place, and I got to work real hard so I can be with her, and that's the only thing I think that keeps me going...that I get to see her again.
"I got to tell her I love her, and I just got to hold her, and I got to apologize to her for not helping her, for not being able to do something, and that's my hell."
Angela reaches the end. But, as always, she has the feeling that there's something else she should have said, some word to describe the emptiness. She wipes away a tear. "I wish I could make you understand."
May 12, 1999
The prosecution wraps up its case with a few last witnesses. A parole officer who testifies that Francisco was wanted for the shooting of Pedro Medina and the assault on Gina Ynostrosa. Two deputies who relate an incident at the jail when Francisco, upset about not being allowed to go immediately to his cell following a hearing, picked up a heavy metal shower grate and seemed ready to attack.
Jacob "Smiley" Casados, another young man in an orange jail jumpsuit, is brought in to testify about an occurrence during Francisco's trial. Another co-defendant who testified for the prosecution, Casados accidentally crossed paths with Francisco, who told him: "You won't be Smiley anymore." But like David Warren, Casados now refuses to talk.
"Why don't you want to testify?" Bakke asks.
"My life would be in danger," he says.
Casados is sent back to his cell. But a deputy who heard Francisco's statement to Casados tells the court all about it.
The rest of the afternoon is consumed by Jeffco sheriff's investigator Al Simmons, who reviews the evidence from the trial.
At the end of the day, the prosecution rests. Tomorrow the defense will get its turn.
May 13, 1999
Among this day's witnesses:
Francisco's father, Francisco Martinez Sr., testifies that he used to beat his wife, especially when she "talked back" about his womanizing and drinking. One Christmas, he tossed the turkey and the Christmas tree out the door.
The violence went both ways. His wife once took a shot at him, and later, after he'd forced his father-in-law off the road, his wife's family had come gunning for him. He'd taken off for California and never returned. At the time, Francisco was four.
Jacqueline Baros, Francisco's aunt, testifies about fleeing her own abusive husband and moving in with her sister, Linda, and Linda's three children. For the first few months, they lived crowded together in a portion of their parents' former home; Linda had blocked off the rest of the house to conserve heat. Jacqueline recalls that they'd see mice crawling over the children, who slept on the floor. "We thought it was funny, but, you know, it's not."
Jacqueline testifies about the day that Linda, who was on anti-depressants, pulled Francisco and his younger sister, Monique, out of school and took them to church. In the front pew, Linda explained to then-eleven-year-old Francisco that he would have to be a man now and "take care of things," then pulled out a gun and aimed it at her head. Fortunately, Linda had called the police in advance, and they showed up in time to wrestle the gun away.
After the turkey incident with Frank Martinez Sr., Linda refused to celebrate Christmas until 1997, Jacqueline says. Noting the date, one member of Brandy's family whispers to another, "only after Brandy was killed."
On cross-examination, Bakke gets Jacqueline to concede that the kids celebrated Christmas with other members of the extended family. "And you made sure the children were never neglected?" Bakke says.
"Yes, I did," Jacqueline admits.
"And didn't you tell a defense investigator that after the church incident, Pancho seemed 'more concerned than upset?'" Bakke asks, reading from the investigator's report.
"That is true."
It's late afternoon when Nicole Martinez takes the stand. She's faithfully attended every day of the hearing, watching sullenly as Francisco's girlfriends testified about what a good father he was to their children.
She'd met Francisco when they were both young teens. She was soon pregnant, but Francisco and his family were unhappy when she had a baby girl instead of a boy.
Nevertheless, she says, Francisco was always a good father to the three children...coming by to see them, even when they didn't live together, as often as two or three times a week.
Francisco's mother didn't like her. "She'd rather see him with his friends than his family," Nicole says. Linda would even invite Francisco's girlfriends and children to dinner with them.
"She was always interfering," Nicole says. And forever making up ways to get Francisco to come home. "She was always dying of cancer or some other sickness."
On August 19, 1994, Francisco was shot by members of the Crips gang. After he recovered, he was sent to prison in Buena Vista, where Nicole visited him with the kids every weekend. He was in prison when they married, in February 1995.
They married because they loved each other, Nicole says. But Linda didn't like it. She would tell Nicole's children, "'I'm not your grandmother,' and 'Your mother's a bitch,' which is not something you tell a two-year-old boy."
When Francisco got out of prison and went to the halfway house, things went well for a while. But gradually Nicole began to see less and less of him. She didn't know he was carrying on with her cousin Gina.
On cross-examination, Randall comments that Francisco was often unkind to her.
"Quite a few times," she concedes.
Once, Randall continues, when Nicole found out about a pregnant girlfriend and confronted Francisco in tears, "his reaction was to laugh."
Randall points out that while Francisco was living in the halfway house, she was supporting their three children alone--even though she was sick with lupus. And during this time, Francisco took her rent money.
"We had an argument," Nicole says in Francisco's defense. "He just put it in a different place."
Reading from a defense interview of Nicole, Randall notes that she'd said when Francisco joined a gang, "he was proud for doing something he knew he shouldn't."
Nicole nods. "It was the first time he had ever accomplished something on his own."
Randall asks her about a domestic-violence incident on April 21, 1993, during which he struck and kicked her "numerous times" and threatened her with a gun.
They both had been fighting, Nicole responds. She was partly to blame.
Randall asks Nicole if she's aware of comments Francisco made to caseworkers at the halfway house. In one, he said that though he loved his children, he felt no special attachment to them and that they were their mothers' responsibility. In another, he said that if he went back to prison, Nicole would leave him, but that was okay because he'd just start another family.
"Those weren't nice things to say," Randall suggests.
"No, they weren't," Nicole agrees.
In tears, she insists that Francisco always made it a point to see the children. But throughout her testimony, she refers to them as "my children," never "our children."
May 19, 1999
"Your Honors, Judge Villano, Judge Hickman and Judge Hyatt, 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."
Francisco Martinez Jr. stands at the defense table, reading from a single sheet of paper. Today, the last day of his hearing, he wears a long-sleeved white shirt over his tattoos, his scars and the electric-shock control belt.
For the past two days, he'd been out of his cell and in attendance while two defense psychologists contended that he was depressed and suffered from post-traumatic stress syndrome and an antisocial-personality disorder--all attributable to his abused, violent childhood and youth. Now, in just a few minutes, closing arguments will begin and then his fate will be turned over to the judges.
At the sentencing hearing for Danny Martinez, Danny's sister, grandmother and mother all tearfully apologized to Brandy's family. Danny's aunt, while testifying that he'd had a difficult childhood, also said that it was "not one that leads to this." No one in his family had wanted Danny to die, of course, but they weren't blind to what he had done. And so they'd requested that his lawyers let them make their apologies.
At this hearing, no one from Francisco's side has offered a word of condolence to Brandy's family. His mother and sisters were never asked to give a statement or testify. Two aunts and his wife appeared on the witness stand, but none said a word to Brandy's family.
It is up to Francisco, who makes his remarks in a flat, emotionless voice. He says he's sorry for the harassment incident during his trial. "I was not trying to make it worse for you," he tells Brandy's family.
Then he apologizes to his own family for his actions, "especially my mother, my sisters and my children, and I want to thank you for staying by my side all the way," he says. He does not mention Nicole.
Francisco looks up and thanks the judges. "Please spare my life," he says, then sits down.
Hal Sargent wastes little time with his closing arguments. The prosecutor wants this to be over as much as anyone. Preparing for this closing, he decided not to use the photographs of Brandy--in part because he didn't think they would be necessary, but more because he couldn't stand to look at them again.
"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 begins.
Looking directly at Francisco, who keeps his eyes on the judges, Sargent adds, "We've seen hell in its most human form.
"What he did to Brandy DuVall was brutal, it was absolutely merciless and absolutely tortuous...What kind of man does that to a child--intentionally, deliberately and, the evidence is, even joyfully."
Turning to Brandy's family, he says, "When he killed Brandy, he did something else. He sentenced these good people to lives of sorrow, grief and pain."
With that, he goes through the five aggravators he says the prosecution has proved beyond a reasonable doubt. When he reaches the "heinous, cruel and depraved" aggravator, he points to Francisco and asks the judges to imagine "the terror of that little girl when she felt the knife and then that man's hands around her neck...knowing he was going to kill her and knowing she could do nothing about it."
The judges didn't have to rely solely on Sammy Quintana's testimony to know who'd really stabbed Brandy, he says. Francisco himself, when questioned by police, had admitted he was in the front passenger seat when the gang left Uncle Joe's house (although he denied that Brandy was with them). The wounds to Brandy's stomach and sides had been caused by the person sitting in that seat.
When the judges reach step three, Sargent says, they will find that whatever mitigators they allow "would pale in comparison to the aggravators." And when they turn to step four, he says, there can be only one sentence: "for the ultimate crime, the ultimate punishment."
Defense attorney Kaplan waits for Sargent to sit before he goes slowly to the podium, as if lost in thought. He is tired. One day during a break in the hearing, he had begged a different judge to reschedule another trial--not because Kaplan didn't have that case together, but because he would be too emotionally drained by this one to put any heart into it, he said.
"Who should live and who should die is not an easy question for a civilized society," Kaplan now begins. And the judges will have to make their decision not just according to "legal concepts, but moral concepts."
They should begin with "the presumption of life...the value of life. The life of Brandy DuVall," he says, turning to the girl's family, and then pointing to his client, "and the life of Francisco Martinez."
Kaplan revives the argument that all of the evidence pointing to Francisco as the man who inflicted Brandy's fatal wounds came from Sammy Quintana. Recalling Quintana's involvement in the killing of Brandy and Venus Montoya, Kaplan asks, "Is that the type of person whose testimony you can rely on in order to kill Francisco Martinez?"
The attorney also returns to Ridley's opening statement that the judges couldn't know if the jury convicted Francisco as the principal or the complicitor. In which case, he says, "it would be impermissible to sentence Francisco Martinez to death on a theory of complicity."
Kaplan attacks the quality of the prosecution's evidence regarding its aggravators, particularly those accusing Francisco of crimes of which he was never convicted. Much of it was hearsay, he argues, or blown out of proportion.
"And what of Francisco Martinez, the man before this court? What of his life?" Kaplan asks, then delves into his client's past.
The judges can't just "sweep it off the table like yesterday's news. It was not just like every other hard-luck story." Some of what Francisco went through would have been "okay if everything else was okay. But it was not okay when you have virtually nothing else going for you."
Kaplan ends his remarks by recalling the Columbine High School shootings a month before. A civilized society, he says, needs to ask questions about what events precede "something this horrible...whether Brandy DuVall or Columbine," and what might have been done to prevent either one.
His voice cracking from the strain, Kaplan says that this is the first time he's had to argue about whether a client should live or die, "and I'm not quite sure how to sit down. Tomorrow will be too late." He asks the judges to try to understand the forces that created Francisco--"and hopefully, to understand is to forgive."
When all the arguments are done, just one question remains to be answered. In this courtroom, at least. Unlike Danny's death-penalty panel, which left everyone guessing when the decision would be made, Judge Villano says this panel will have its answer in eight days--on May 27, 1999.
Just four days shy of the two-year anniversary of Brandy DuVall's murder.
May 27, 1999
"I didn't want to come, but Danny asked me to. I told him I don't want to show any disrespect for Angela. But he said, 'Linda needs you.'"
Theresa Swinton, Danny Martinez's mother, sits outside the courtroom where, in a few minutes, she'll learn whether the young man she has known since boyhood will be sent to the state executioner. Outside, low gray clouds obscure the tops of the foothills just west of the courthouse--fitting weather for the occasion, she notes.
"I told him I'd come but I didn't want to go in the courtroom," she says of her conversation last night with Danny. "I no more want to hear them hand down the death penalty for Pancho than I did for my own son. But he said, 'You have to go in the courtroom and be there for her.'"
Theresa sighs. In the few weeks since Danny had escaped the death penalty by a single vote, she'd felt good. Her prayers had been answered: Her son would live.
But as Pancho's hearing approached, she realized she'd been kidding herself if she thought she could get on with her life. It can only be over if he receives a life sentence without the possibility of parole. That would be justice for what her son and his best friend did to that little girl. "They should have to get up every morning and work hard until night," she says, perhaps building schools or playgrounds.
But if Francisco gets the death penalty, it will not be over. Not for his family, not for hers: The sentence would automatically be appealed, and the legal battles would go on for years. She fears for her son Antonio if Pancho is sentenced to die. Antonio escaped the gang and has a good life far away from Denver, but Pancho was his friend, too. Antonio feels guilty because he walked away but didn't find a way to save Pancho and Danny. It is hard enough for Antonio that his brother will spend the rest of his life in prison; if Pancho is sentenced to die, she worries it will be too much.
"I want this to be over," she says, and gets up to comfort Linda, who has arrived, her face a picture of terror.
A few raindrops strike the window behind the women and run down the panes. The weather seems a portent, predicting the tears of the families waiting in the hall, waiting to be let into the courtroom, waiting for the final judgment.
Angela and her family appear; they are led past the line and to their customary seats. What will she do when this is over? Where will she go? Angela doesn't know. She's purchased books on how to deal with death, but none have helped. Her grief has no structure, no stages to check off. The tide continues to rise. She will heal at her own pace--or not at all.
Shortly before 10 a.m., the rest of the spectators are in the courtroom. Francisco soon enters and appears stunned by the size of the crowd. He sits quickly, without searching out any faces. A few minutes later, the judges come in. As Judge Anderson had done at Danny Martinez's sentencing, Villano encourages anyone who "will not be able to listen to the sentence without disrupting this court...to go into the hall now."
After the verdict was read at Francisco's trial, his family and friends had erupted in grief, crying "no, no, no" over and over as they wept. But no one leaves the courtroom now, and families on both sides of the aisle struggle to keep quiet.
As he hands packets containing the sentencing order to the attorneys, Villano asks them not to open them or read them until after he announces the verdict.
So no one knows until later that the judges have determined that all five of the prosecution aggravators were proved beyond a reasonable doubt. Of the mitigators, they've accepted just one, the catch-all "any evidence which in the court's opinion bears on the question of mitigation." While the judges largely dismissed the testimony of the defense psychologists, they had some sympathy for Francisco's upbringing.
"The panel finds that this defendant did endure a difficult, disturbing and unsettled childhood," their decision reads. "He suffered from the absence of positive male role models and the presence of a mother who, though she appeared to love him, suffered from mental disturbances that were, at times, debilitating.
"Although many of the defendant's claims of abuse and neglect were determined by the panel, after hearing, to be less compelling than claimed, the panel does find that the defendant is entitled to mitigation based on the unsettled and disturbing nature of his childhood home."
With that as the only mitigator, the judges had easily decided in step three that the aggravators outweighed the single instance in the defendant's favor. Which brought them to step four.
"In nearly fifty years of collective judicial experience," the judges stated in their opinion, "this panel has never dealt with a more shocking display of conscienceless depravity than that of this defendant.
"Counsel has asked the panel to try and understand the factors that shaped this defendant and led to this crime. That level of comprehension does not assist in understanding the crime.
"Even at trial, a year and a half after the crime, the defendant's conduct was extraordinary. Following the tearful and emotional testimony of the mother of the fourteen-year-old victim, while the court was in recess, the defendant felt compelled to make eye contact with the mother and to laugh and smirk and nod his head at her.
"The defendant's brief emotionless statement of apology to the child's family at the end of the sentencing proceedings seems to pale against the backdrop of his malevolent attitude toward them over the course of this long and difficult process."
Even for a gang member, the panel wrote, Francisco was unique. "While this panel knows all too well the insidious nature of the gang as a surrogate family and the difficulty inherent in resisting its embrace for a man like the defendant, it must be acknowledged that not every gang member rises to the level of barbaric malevolence attained by Mr. Martinez.
"The panel also acknowledges the tragic consequences of this crime for the victim and her family...The death of Brandaline DuVall and the manner of her death will never be understandable or bearable. It is beyond the ability of this panel to alter that tragic fact."
All of this and more is contained in the packets that sit unopened on the tables in front of the attorneys. The details will spill out later. Right now, the consequence of the judges' considerations comes quickly from Villano:
"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."
A single, desperate moan escapes from a woman on the defense side, then tiny whimpers as Francisco's supporters try to abide by the judge's order. Brandy's family also cries quietly. There is no happiness here.
Francisco shows little reaction, other than the quick tapping of his foot on the floor. When he stands to be handcuffed, he doesn't look back. Not at his family crying in their seats, not at the family of the little girl he murdered. He leaves the courtroom.
The devil exits with him. Nearly two years have passed: three trials, seven sentences, one life stolen, seven wasted, so many more in tatters.
The curtain falls, and the stage fades to different shades of black.
To read Steve Jackson's complete "Dealing with the Devil" series, visit www.westword.com.
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