The three judges entered the Denver courtroom crowded with public defenders, prosecutors, death-penalty activists and friends and family of the victim. They had all gathered this March morning to hear if Donta Page would be sentenced to die for the murder of Peyton Tuthill.
The crime was brutal. Page had broken into Tuthill's Gaylord Street duplex on February 24, 2000, helped himself to a beer, then grabbed a knife when the young woman came home a little before noon to let her dog out. He'd come at her, slashing with the knife, beating her, raping her, cutting her throat, then stabbing her to death...all as she begged him, screamed for him to stop.
Before Page's trial last December, his defense attorneys had announced that he was willing to plead guilty to everything -- felony first-degree murder, rape, assault, burglary -- except "first-degree murder after deliberation," the charge most likely to result in a death sentence. Page's crime had been "opportunistic," his lawyers argued, but Peyton's murder was not premeditated.
Read more Westword coverage of Colorado's death penalty in Penalty Zone
But the prosecutors had rejected any plea deal, and the jurors had found him guilty of all charges, paving the way for a death-penalty hearing. Under a state law that went into effect after June 1996, a three-judge panel, rather than a twelve-member jury, would decide if Page lived or died. The Donta Page case was just the eighth in which a panel of judges had decided the defendant's fate; so far, panels had handed down only three death sentences.
Now the judges took their seats on the dais. Even though the law was relatively new, all three had served on death-penalty panels before. The trial judge, Denver District Court Judge William Meyers III, had been on the panel considering the fate of Jacques Richardson eighteen months earlier. Leland Anderson, a Jefferson County District Court judge, had presided over the Danny Martinez Jr. case at roughly the same time. Brooke Jackson, also from Jefferson County, had been one of the judges on the state's first death-penalty panel, Robert Riggan's hearing in April 1999.
None of those killers had been sent to death row. And of the three judges, only Anderson had previously cast a vote for death.
Page, a huge man weighing more than 300 pounds, sat with his defense team, Jim Castle and Randy Canney. They'd argued that what their client had done to Peyton Tuthill wasn't in the same category as the murders that had brought in death row's current tenants: Frank Rodriguez, Robert Harlan, Nathan Dunlap, Francisco Martinez and George Woldt. Or as bad as the crime committed by Gary Davis, who in 1997 became the first man executed in Colorado in thirty years. In legal terms, this was the "proportionality review."
Across the aisle were the prosecutors: Denver chief deputy district attorneys Henry Cooper and Phil Brimmer. They'd argued that Page fit within the legal parameters for the death penalty -- proportionality review notwithstanding.
In the row behind the prosecution table, Peyton's family and friends waited. Her father, Steve, who hadn't wanted his daughter to move to Colorado, had told the judges that "this beautiful child wasn't just murdered -- she was slaughtered." Her mother, Pat, sat clutching a photograph of Peyton on horseback with snow falling around her, which she'd brought to court each day to remind the judges that her daughter had once been a beautiful, loving, kind young woman...not a "case" to be argued over by lawyers.
The justice system had proven far crueler than Pat could have imagined. The worst had been listening to the defense attorneys talk about how her daughter's murder, while heinous, was not as heinous as some other murder. As if killings could be ranked and rated.
It was almost over -- this part, at least. Judge Meyer told the courtroom that he would tolerate no outbursts, then began to read the sentencing order: Donta Page would not be sent to death row.
As Meyer continued to read, Pat rose from her seat. She knew what was coming. She'd heard it before and didn't want to hear it again. Not the details of that terrible day. Not the excuses for Page. Not the idea that Peyton's death somehow wasn't "as bad" as other deaths. Not that killing her killer would "lower the bar" for the death penalty in Colorado.
She wanted to scream at the defense lawyers and the judges. What else would he have had to do to Peyton? Decapitate her instead of just cut her throat? Dismember her rather than nearly cut off her thumbs? How many more times did he have to stab her? How many more ways did he have to rape her?
But she remained silent. Holding her ex-husband's hand, she turned her back on the judges and lawyers, leaving them to their debates.
In what would become Colorado, as in much of the early West, a criminal could be hanged for crimes ranging from horse-thieving (leaving a man without his horse was as good as sentencing him to death) to rape, kidnapping, claim-jumping and murder. At times, lynch mobs administered frontier justice without benefit of a trial.
In 1861, territorial lawmakers decided that only murder and voluntary manslaughter were punishable by death; in 1874, two years before Colorado became a state, crimes related to mining claims were added to that list. The Colorado Legislature abolished the death penalty in 1897, only to reinstate it four years later -- although not for anyone under the age of eighteen or those convicted of murder based on circumstantial evidence. The impetus for the death penalty's revival had come in 1900, when a mob in Limon burned a suspected child-killer to death. Lawmakers reasoned that the absence of the death penalty had resulted in more violent criminals -- as well as more frustrated citizens willing to take justice into their own hands, if need be.
Death by hanging remained the official means of execution until the early 1930s, when Eddie Ives was hanged for two murders -- twice. The first time, the rope broke, and Ives, who'd proclaimed his innocence right up to the last minute, was dropped on his head. The executioners strung him back up, but because Ives weighed so little, the noose didn't break his neck. It took fifteen gruesome minutes for him to strangle.
With Ives's sorry end in mind, in 1933 legislators made the gas chamber the state's preferred method of execution. One of the most infamous killers put to death in the gas chamber was John Gilbert Graham, who was executed in 1957 for placing a bomb aboard a United Airlines flight and killing all 39 people aboard -- including his mother, for whom he'd just taken out a $38,000 insurance policy. The last man executed in the chamber was Luis Jose Monge, killed in 1967 for the murder of his wife and three of their children. Monge's death brought to 77 the number of criminals executed by Colorado. But then a series of decisions by the U.S. Supreme Court put the death penalty on hold across the nation.
Although the high court had always tinkered with the particulars of the death penalty, including one decision that prohibited death sentences for rape or kidnapping, these rulings cut to the very heart of its constitutionality, primarily on the grounds that it violated Eighth Amendment protections against "cruel and unusual punishment." They culminated in Furman v. Georgia in 1972, when the court voted 5-4 to abolish the death penalty in the 32 states that then had the option, including Colorado. The majority opinion held that jurors had far too much discretion and not enough guidance -- including what might set a murder that justified capital punishment apart from one that didn't, and what might differentiate one murderer from another -- and that therefore, the death penalty was too often handed down in an "arbitrary and capricious" manner. As a result of that decision, more than 600 prisoners across the country found their sentences commuted to life in prison.
In 1976, the Supreme Court ruled that capital punishment was constitutional as long as judges and/or jurors were allowed some discretion on when to impose it and were given guidelines to follow. One of the ramifications of this decision was that capital cases were now divided into a guilt phase and a penalty phase, with a separate trial for each. For the penalty phase, most states created a process that included the consideration of "aggravating factors" that might qualify a crime for the death penalty, as well as "mitigating factors," which might explain why a criminal did not deserve to die, if not excuse him.
In 1974, even before the Supreme Court paved the way for the return of the death penalty, Coloradans had voted overwhelmingly -- 451,401 to 286,805 -- to bring it back. After that, the state legislature proceeded to pass a statute that outlined the death-penalty process in a way lawmakers hoped would satisfy the Supreme Court.
Some changes were a matter of semantics: "Premeditated first-degree murder," for example, was switched to "first-degree murder after deliberation." The lawmakers' rationale was that premeditation invoked the image of a killing that was planned well in advance and then carried out; legally, deliberation was defined as the time it took to consciously decide to kill someone -- from a moment to months, even years.
Under the state's new statute, a district attorney would first determine whether the facts of the crime fit the criteria for a "capital case" eligible for the death penalty, either as first-degree murder after deliberation or murder committed to cover up the commission of, or in furtherance of, another felony, also known as "felony murder." Prior to trial, the DA had to file a motion with the court indicating that the prosecution team would be seeking the death penalty. Then, if the defendant was found guilty, a death-penalty hearing would follow.
That hearing would begin with opening statements from both sides. Then the prosecution would present its evidence to prove "beyond a reasonable doubt" that at least one of more than a dozen legally proscribed aggravating factors existed. And the defense attorneys would present their evidence of mitigating factors; the Colorado statute listed five possibilities.
After the defense rested its case, both sides would present closing arguments. These were often occasions of high drama, as attorneys implored, pleaded and demanded that the jury see the wisdom of their views. Finally, because the state had the burden of proving its case, the prosecution would get one last rebuttal before the life-or-death decision was turned over to the jury.
Under this new Colorado statute, the jurors would use a two-step process to determine their verdict. Step one would determine whether the prosecution had proved beyond a reasonable doubt that at least one aggravator existed. A murder might have occurred during the commission of another felony, such as rape or robbery, for example, or a murder might be "particularly heinous, cruel and depraved." The jury's vote had to be unanimous before an aggravator could be accepted; if the jury failed to approve at least one, there was no need to go to the next step.
Step two was to determine whether the defense had supplied enough evidence to suggest the existence of mitigators, such as: if the defendant was under the age of eighteen; if he was under unusual duress; if he was a principal with relatively minor participation -- although not so minor as to constitute a defense from prosecution -- in the offense committed by another. If the jury determined that there were mitigators, then the sentence was life in prison.
Following the Supreme Court's 1976 ruling, Colorado reinstated the death penalty. But in 1978, it was struck down again -- this time by the Colorado Supreme Court, which determined that the mitigating factors listed in the state statute were "too restrictive." The legislature remedied this in 1979 by adding the rather nebulous concept of "any other evidence which in the court's opinion bears on the question of mitigation." And lawmakers added seven more mitigators, including the influence of drugs or alcohol and a "good faith, although mistaken, belief by the defendant that circumstances existed which constituted a moral justification for the defendant's conduct."
Lawmakers added another aggravator, too: if a defendant was a party to an agreement to kill another person. More significant, they also addressed prosecutors' concerns that aggravators were "canceled out" if the jury decided there were mitigators. The language of the statute was altered to require a death sentence if at least one aggravator had been proven -- unless the jury was convinced there were "sufficient" mitigators to warrant a sentence of life in prison. This added a third step to the process, one that called for "weighing" of the aggravators against the mitigators.
The death penalty was back, although no one was particularly happy with the new rules.
Prosecutors contended that the statutes made it more difficult to get a death-penalty verdict in Colorado than it would be in other states. A major concern was that Colorado jurors had to reach a unanimous verdict, while some other states only required a "super-majority" of nine or ten of twelve. If the defense convinced just one juror to vote against the death penalty, Colorado prosecutors complained, the will of the other eleven wouldn't matter.
In 1984, the legislature amended the death-penalty statute once again. The prosecution now had to prove the existence of at least one aggravating factor "beyond a reasonable doubt," the same standard prosecutors had to meet in a trial. The new language, however, also said that the defense did not have to prove its mitigating factors "beyond a reasonable doubt," nor did the jury decision have to be unanimous in deciding they existed. In fact, the defense had no burden of proof beyond what could be called a "burden of persuasion," which would leave it up to each juror to decide how much weight to give the defense case.
The most important change to the statute, however, was a rather innocuous-sounding addition: that based on a "consideration" of the other steps, a jury would decide "whether the defendant should be sentenced to death or life in prison" -- essentially, whether he "deserved" to die. In the years that followed, this was interpreted by trial courts as adding a fourth step, making Colorado's death-penalty statute a hybrid of other states' statutes. The states were divided between "weighing states" -- in which jurors compared aggravators to mitigators and determined whether the former "outweighed" the latter -- and "non-weighing states." In weighing states, if aggravators outweighed mitigators, the sentence was death. In a non-weighing state, jurors heard evidence of both aggravators and mitigators. But they were required only to decide whether there was at least an aggravator before looking at the case as a whole and deciding the penalty. Only Utah and now Colorado combined the two versions.
Colorado's fourth step would spare many murderers who likely would have landed on death row in a "weighing" state.
Late in the afternoon of November 14, 1984, Lorraine Martelli, a 54-year-old bookkeeper, left work. A devout Catholic who'd never married, she lived with her elderly mother in the old Italian neighborhood of north Denver.
As Martelli walked to her car, she was spotted by brothers Frank and Chris Rodriguez and David Martinez and his girlfriend, Patricia Thomas, who were looking for someone to rob. Too late, Martelli spotted the Rodriguez brothers approaching. The two men grabbed her and forced her into her car. Pushing her to the middle of the front seat, Frank got in on one side and Chris on the other. Martelli tried to resist, honking the horn, but the pair drove down an alley and swung around to pick up Martinez and Thomas.
After they drove to a public-housing area, Frank got out of the car and went into an apartment to buy pot with Martelli's money. While Frank was in the building, Chris raped Martelli.
Violence was nothing new for the Rodriguez brothers. In 1978, they and a cousin had abducted "Judy," a young mother who'd gone outside to warm up her car. For several hours, the trio had taken turns raping Judy vaginally and anally. They'd considered killing her, then finally let her go in a warehouse area along the Platte River. After warning her that they'd kill her and her baby if she told anyone, the threesome took off. But Judy did tell, and the cousins were arrested and convicted.
At the time of the Martelli kidnapping, the brothers had only recently been released from jail. Now they were back to their old tricks. After Frank returned with the pot, they headed to the mountains, with Frank driving, and discussed what to do with "the lady." When Martelli asked what was going to happen, younger brother Chris told her they'd probably let her go. But Frank said no, she'd seen their faces; they couldn't release her. He didn't want to go back to prison.
They ended up driving back to Denver, close to the spot where they'd let Judy go a half-dozen years before. Frank got out of the driver's seat, saying it was his turn to "have my thrill" with Martelli. While the other three waited outside the car, he assaulted her. When Chris complained that he was taking too long, Frank interrupted his "thrill" long enough to get out and hit his brother, then returned to his victim, whom he raped repeatedly.
Finally, Chris got in the car and began to drive, but he only got about twenty yards when Frank started torturing Martelli with a knife. Dragged from the car, she pleaded for her life. Frank replied that she was stupid and continued stabbing her -- she had a total of 28 wounds -- until she died. The three men then tossed Martelli's body into the trunk of the car, and they all drove to another apartment building to visit the Rodriguez brothers' girlfriends. When the killers were caught several hours later, the body was still in the trunk of the car.
Martinez pleaded guilty to second-degree kidnapping and received a twenty-year sentence. Thomas was given immunity in exchange for her testimony against the Rodriguezes, who'd been charged with first-degree murder after deliberation and first-degree felony murder as well as first-degree sexual assault and kidnapping.
Denver District Attorney Norm Early announced that his office would seek the death penalty for both brothers. Chief Deputy District Attorney Mike Little, who'd prosecuted the Rodriguez brothers for the 1978 rape, would prosecute both cases.
In 1986, Chris Rodriguez went first. The prosecution held that the younger brother was a "principal" in the felony murder; for the count of first-degree murder after deliberation, however, he was charged and convicted as a "complicitor," under the legal theory that while he didn't wield the knife that killed Martelli, his actions leading up to the murder made him equally culpable. He was convicted of all charges.
At the death-penalty hearing, the prosecution's aggravators included the claim that Martelli had been killed to eliminate the witness to a crime (her rape and kidnapping), and that the murder had been particularly "heinous, cruel and depraved." Little supplemented the facts of Martelli's torment and death with testimony from Judy, as well as from a man who'd miraculously survived after being shot four times in the head by the brothers just days before they killed Martelli.
The jurors agreed that the prosecution had proved its aggravating factors, and they felt that the aggravators outweighed the mitigators. But they balked at the fourth step. The fact that he had not stabbed Martelli saved Chris Rodriguez from a death sentence; instead, he was sentenced to spend the rest of his life in jail.
Frank Rodriguez went on trial almost a year later; this time, Little was joined by Deputy District Attorney Craig Silverman. The jury quickly found Frank guilty of all of the charges.
At his sentencing hearing, the defense presented a fifty-page exhibit put together by one of its investigators detailing the rough childhood of Frank Rodriguez: son of a convict, a child growing up in a violent neighborhood. The defense also argued that it was Chris who started the chain of events that ended with Martelli's murder.
But the defense attorneys couldn't get around the fact that it was Frank Rodriguez who'd wielded the knife. A jury sentenced him to death on January 28, 1987, and Frank Rodriguez was sent to death row.
He didn't have long to wait for company.
On July 21, 1986, Virginia May, 33, was living with her husband and two young children, a boy and a girl, on a ranch about 25 miles north of Byers. A slender, pretty woman, "Ginny" was tougher than she looked, having been raised on her parents' ranch.
Even after his daughter married, Rod MacLennan knew that if he needed a hand at his place, all he had to do was ask Ginny May. She'd stop working in her much-loved flower and vegetable gardens or turn off the computer, where she was going over cattle records, and pitch in. Like many farm people who have to rely on their neighbors in times of need, she was friendly and trusting.
That July afternoon, Ginny was home with her two toddlers when Becky Fincham, a neighbor, called to say she had some children's clothes to give her. She also wanted to know if Ginny's husband was home. When Ginny said no, he wasn't, Fincham said she'd be right over. She didn't mention that her husband, Gary Davis, would be coming.
Fincham had met Davis, a convicted sex offender, after writing to him in prison. Once Davis got out, he'd become obsessed with acting on a violent sexual fantasy. Over the past weeks, the couple had tried to approach other women, but one thing or another -- the sudden appearance of a husband or ranch hand -- had scared them off.
Now, as Ginny, her daughter and Fincham emerged from the house, Davis punched Ginny in the face; his wife told the little girl to go back inside. What occurred next was confused by the couple's changing stories, but Davis raped, or attempted to rape, Ginny in the back of the car while his wife drove to a secluded field. Stripped of her clothes, with a rope tied around her neck, Ginny was dragged from the car. Davis then raped, or attempted to rape her again -- using a knife to coerce her into submission -- after which Ginny was forced to perform oral sex on Fincham.
During the ordeal, Ginny fought and pleaded for her life, even offering the couple money to let her live. Instead, Davis struck her in the head with the butt of a .22 caliber rifle, fracturing her skull. The blow didn't kill her, though, and she was able to raise her hands in futile defense when Davis and/or Fincham -- their stories were contradictory -- aimed the rifle and fired. Ginny was shot fourteen times in the head, chest and pubic area. The killers covered her body with a bale of hay and went home.
For two days, Ginny's family, friends and neighbors searched for her. Davis and Fincham were immediate suspects after Ginny's husband returned to find the children alone and his daughter told him, "Becky took her." But the couple denied knowing anything and even offered to help look for Ginny.
Late in the afternoon of the second day, the sheriff told Ginny's folks that they'd located her body. Rod MacLennan had been hoping against all reason that his daughter would be found alive; he just couldn't understand how anyone could do such a thing to a young woman who'd never harmed anybody in her life.
Davis and Fincham were arrested and charged with Ginny May's murder. Exactly one year after the killing, with Adams County chief deputy district attorneys Bob Grant and John Coates prosecuting the case, Davis was convicted of kidnapping and first-degree murder after deliberation. He'd torpedoed his own defense by climbing on the witness stand -- against the advice of his attorney, Craig Truman -- to confess to everything. Although he'd claimed the opposite earlier, he now insisted that his wife, who had already been convicted and sentenced to life, was not at fault; he blamed alcoholism for his conduct. The death-penalty hearing began immediately. Within three hours, the jury sentenced Davis to die.
Rod MacLennan thought the sentence was just. He'd always believed in the death penalty, but until Ginny's murder, his belief had been philosophical. Now he wanted to see for himself the execution of the man who'd killed his daughter.
He couldn't have imagined then how long he would have to wait.
The late 1980s and early '90s saw significant changes in the application of Colorado's death-penalty statute. In 1988, the state changed its method of execution from the gas chamber to lethal injection. Proponents said it was more humane; opponents pointed out that the procedure had been botched in states already using lethal injection.
But Colorado was a long way from carrying out a death sentence by any means.
In 1988, Michael Tenneson, 28, went on trial in Denver District Court, charged with two counts of first-degree murder after deliberation for the 1987 deaths of Jeffrey Sheffield, 23, and Mitchell Gonzales, 22.
Before the trial had even gotten under way, Tenneson confessed to three more murders in Wisconsin. He'd broken into a home, shot and killed its owner, killed the owner's mother, then killed the owner's girlfriend. But he wasn't confessing because of a sudden attack of conscience: He hoped to be extradited back to Wisconsin, where there was no death-penalty statute.
Denver wanted him first, though. Little was again on the case. Through his attorneys, Tenneson tried to claim that Sheffield had attempted to rob him after a night of drinking and snorting cocaine. But the prosecution proved that Gonzales and Sheffield had been murdered in their sleep. Although the Denver jurors hadn't yet been told of the Wisconsin murders, they easily convicted Tenneson of two counts of first-degree murder after deliberation.
At Tenneson's death-penalty hearing, his Wisconsin confession came into play, as did a previous conviction for raping an elderly woman.
The defense attorneys brought in a psychologist who testified that Tenneson suffered from fetal alcohol syndrome; the result was a "serious personality defect" that impaired the defendant's ability to tell right from wrong. The syndrome wasn't enough to save him from prosecution, his lawyers argued, but enough that Tenneson should be sentenced to life in prison, not death. The prosecution brought in its own psychologist, however, who testified that even if Tenneson were a victim of fetal alcohol syndrome, which he doubted, it wouldn't have caused him to murder people.
And at closing, Little had his own description of Tenneson's personality defect: "He kills people." As the jury went off to deliberate, Little was confident that the defendant would soon be on death row.
In fact, the jurors accepted the prosecution's aggravators and determined that they outweighed any mitigating factors. But they were tripped up by the fourth step.
Eleven of the jurors quickly agreed with Little's assertion that Tenneson deserved to die. The last juror, however, refused to even participate in the deliberations; she had a "gut feeling" it wouldn't be right to vote for the death penalty. The rest of the jurors decided to go home and return the next day, when they might be able to convince the hold-out to at least take part in the discussions, as she'd been sworn to do when she was put on the jury. But the next day, she sat in a corner with her back to the others.
In any other criminal case, a vote of eleven to one either for or against the defendant would have resulted in a mistrial, and the whole process would begin again with a new trial and jury. But in a death-penalty case, a jury had to be unanimous if voting for the "ultimate punishment"; otherwise, the sentence was life in prison. Angry, the eleven jurors were forced to surrender, and Tenneson went to jail for life.
When the Colorado Supreme Court reviewed the Tenneson case, the justices reaffirmed the validity of the fourth step. In 1988, the Colorado Legislature revised the death-penalty statute to do away with the fourth step - or so lawmakers thought.
One night in June 1989, Dan Smith and Steve Curtis returned home from a double date and were accosted by two men who'd broken into their house in southeast Denver. The intruders were Joe Young and Kevin Fears, who were there to murder another roommate, Frank Magnusson.
Several months earlier, Magnusson had witnessed an armed robbery; he was able to identify Joe Young's older brother, Roger (also known as Roy) Young as one of the gunmen. With his trial for that robbery coming up, Roger Young, who'd been sent back to prison on a parole violation, was worried that one more conviction would land him behind bars for life as a habitual offender. He decided that Magnusson needed to be silenced, and he arranged for it over the phone.
The plan was to make the murder look like a burglary gone bad. Joe Young and Fears broke in and waited in the basement for Magnusson, while Roger Young's common-law wife, Christa, sat in the getaway car. The problem was that neither of the hit men knew what their target looked like. So they grabbed Smith and Curtis and knocked them around, demanding to know which one of them was Magnusson.
When they finally figured out the man they wanted wasn't home yet, they made Smith and Curtis lie on the living-room floor and called Christa to figure out what to do. While their victims listened, they decided they were going to have to kill them: The burglary-gone-awry plan wasn't going to work if they left witnesses alive.
Fears had the gun and shot Smith in the back of the head, killing him. He then shot Curtis, but the wound wasn't fatal, and Curtis was able to fool his assailant by playing dead. Magnusson arrived home just as Young and Fears were leaving through the back door. They chased him across the backyard, and Fears shot him to death.
Once again, Mike Little was on the prosecution team seeking the death penalty, this time for Fears and the Young brothers. But there was a legal hitch: The defendants' lawyers, including David Vela, the director of the Colorado Public Defender's Office, and David Kaplan, a former public defender, went to the Colorado Supreme Court, arguing that the death-penalty statute that lawmakers had just revised was unconstitutional. The third step now specified that the mitigators had to outweigh the aggravators or a defendant would receive the death penalty; that meant that even if the mitigators were judged equal to the aggravators, the defendant would be sentenced to die -- and that was unfair, the defense attorneys argued. The court agreed, ruling that the new statute was unconstitutional since it could subject clients to "cruel and unusual punishment."
In other states where the three-step process had been reviewed and judged constitutional, the wording was reversed: The aggravators had to outweigh the mitigators in order for a death sentence to be imposed. If they were equal, the defendant would not face execution. But rather than correct the statute's language, state lawmakers quickly endorsed the previous four-step process, and Colorado again had a death penalty. And the next time the legislature decided to change the death-penalty statute, lawmakers were careful not to tinker with the four-step process.
Almost a year after the trial had first been scheduled, prosecutors Little and Al LaCabe finally opened their case against Kevin Fears. With an eyewitness, Curtis, testifying to the murder of another eyewitness, the jury easily found Fears guilty of first-degree murder after deliberation, felony first-degree murder, attempted first-degree murder and burglary.
Little believed they had a strong death-penalty case. Fears had shot three people, not in the heat of the moment, but in cold-blooded executions. Two of his victims had died; the third lived to testify against him. But the fourth step would again trip up the prosecution.
The Fears trial and death-penalty hearing took twelve weeks and involved more than a hundred witnesses; the case also set a number of legal precedents. Prosecutors were used to dealing with testimony about tough childhoods and abusive parents, but the defense went to new extremes to present "any other evidence which in the court's opinion bears on the question of mitigation." They delved into the background of Fears's parents, into his other relationships, into his school record. His attorneys took advantage of the fact that Fears was a handsome young man who didn't look like a cold-blooded killer. On the stand, he begged for his life, saying he'd found religion -- he'd converted to Islam -- and even moving some jurors to tears.
After two hours of deliberations, the jurors returned with a verdict. They'd split over the fourth step, and therefore Fears would not be sentenced to die. In light of the Fears outcome, the death-penalty filings against the Youngs were dropped, and they pleaded to lesser charges.
Denver Chief Deputy District Attorney Bill Ritter hadn't been part of the prosecution team, but he talked to several jurors after the Fears verdict. He came away with several observations that would affect his strategy when the Colorado Legislature again began talking about changing the death-penalty statute. One was the jurors' resentment over how long their lives had been disrupted. Another was that many of the younger jurors seemed swayed by the defense's emotional arguments rather than by the law.
Years later, Mike Little would look back at the Fears death-penalty hearing and see it as the moment when defense strategies began to swamp jurors and, later, judges with what prosecutors would deride as the "abuse excuse."
The next man to be sentenced to death was already behind bars when he confessed to the murder that landed him on death row. In April 1988, Ronald White had been sentenced to life in prison after he pleaded guilty to the murders of a Pueblo hotel clerk and a bicycle salesman. Then 28 years old, White would have been eligible for parole in 2046.
In prison, however, White complained that he was regularly assaulted by Cañon City guards. So he came up with a plan to get away from his tormentors: He confessed that in 1987, he'd shot his roommate, Paul Vosika, in the head, decapitated him, then chopped off his hands to prevent identification.
A self-professed serial killer, White -- who'd later claim he "couldn't begin to count" the number of people he'd murdered -- hoped that by pleading guilty, he'd be allowed to transfer to a Wyoming prison. Instead, in May 1991, he was sentenced to join Gary Davis and Frank Rodriguez on Colorado's death row.
In November 1993, an opinion poll showed that 80 percent of Colorado's voters endorsed capital punishment. In the almost twenty years since Colorado had voted to reinstate the death penalty, there had been more than 3,500 murders in the state. Although fifteen killers had been sentenced to death, one had died while waiting on death row, nine had had their convictions or sentences overturned on appeal, one had had his sentence commuted to life in prison, and one had been executed for a murder in Texas. Of the 38 states in which the death penalty was legal, only four -- New Hampshire, New Mexico, Wyoming and South Dakota, all states with much smaller populations -- had fewer killers on death row.
But those same Coloradans who favored the death penalty philosophically often balked when they were sitting in the jury deliberation room. It took a particularly heinous crime to move all twelve jurors through that fourth step.
On December 14, 1993, the employees of Aurora's Chuck E Cheese restaurant had locked the doors for the night when nineteen-year-old Nathan Dunlap emerged from the restroom where he'd been hiding. Fired a few months before, he wanted revenge.
First he shot nineteen-year-old Sylvia Crowell, a student at Metro State College. Next he walked up to seventeen-year-old Ben Grant, a junior at Smoky Hill High School, and shot him in the face. Colleen O'Connor, a seventeen-year-old senior at Eaglecrest High School, saw her killer coming and got down on her knees to plead for her life; Dunlap shot her through the top of her head.
He then went into the kitchen, where he shot nineteen-year-old Bobby Stephens in the face. The bullet knocked Stephens to the floor but didn't kill him. After Dunlap walked on, Stephens got up and went for help.
Proceeding to the office, Dunlap ordered assistant manager Marge Kohlberg to open the safe. Kohlberg, the mother of two daughters, had just moved into her "dream house" with her husband; she'd been working at the restaurant for only two weeks and had had nothing to do with Dunlap's firing. But after she did as ordered, Dunlap shot her in the ear. When she fell to the floor, he shot her through the other ear. He then emptied her purse, filled it with about $1,500 from the safe and left the restaurant.
Dunlap wound up at the apartment of a friend, who helped him count the money. "I did it," Dunlap told his friend. "Chuck E Cheese." Next, Dunlap went to his girlfriend's home, where he called his mother. She said the police were there looking for him. He was arrested the next morning.
Denver was still reeling from the Chuck E Cheese murders when another killing shook the community.
Early on February 12, 1994, 25-year-old Rhonda Maloney was driving home from her job as a Central City cocktail waitress. Although the job paid well, Rhonda had plans that went beyond slinging drinks. She and her husband managed the apartment complex where they lived, and she hoped to go to school to learn to be a hairdresser. At some point, she wanted kids.
It had snowed that night, and Rhonda's car got stuck at the intersection of interstates 76 and 25. A man pulled over: Robert Harlan.
Driving home from work, Jaquie Creazzo had just exited eastbound I-76 for northbound I-25 when she noticed two cars parked on the highway. As she slowed to see if there was a problem, a woman emerged from the passenger side of one of the cars and frantically gestured for help. Creazzo stopped, and the woman, Rhonda Maloney, jumped in, saying she'd just been raped and that a man in the car had a gun and was going to kill her.
The pair took off with Harlan in pursuit. Pulling alongside, he fired several shots, striking Creazzo in the face, knee and spine. She lost control of the car -- on the lawn of a police station. As the car came to a stop, Harlan ran up with his gun, warned Creazzo that he'd kill her if she told anyone, then dragged Rhonda out and put her in his car.
Creazzo, who was left paralyzed from the waist down, was able to give police a description of her assailant. But it was Harlan's own family that found bloody evidence of his crime and turned him in three days later.
Rhonda Maloney's body was discovered four days after Harlan's arrest, near the intersection of Colfax Avenue and I-70. She'd been raped, beaten -- there were more than sixty injuries on her body, including a fractured skull and facial bones -- and then shot in the head.
In the wake of Dunlap's rampage, Coloradans grew more vocal in their support of the death penalty, and the legislature added multiple murders to the list of aggravating factors that prosecutors could use when arguing for the death penalty.
The debate intensified after Maloney's killing. Some arguments were emotional, focusing on society's right for retribution versus the moral admonition that killing does not stop killing.
Other arguments were economic. Proponents of the death penalty pointed out that keeping a prisoner alive for twenty, thirty, forty, fifty years of a life sentence would cost taxpayers more than $30,000 a year; opponents countered with the high cost of prosecuting and defending such cases, including the inevitable appeals. But the proponents fired right back, accusing the state public defender's office, which defended the vast majority of death-penalty cases, with having ulterior motives for keeping costs high. Not only was the office trying to expand its budget, and thus its clout, but it was also using economic coercion to convince the public to abandon the death penalty altogether. The public defender's office countered again, noting that prosecutors had the investigative and forensic services of law-enforcement agencies, including the Colorado Bureau of Investigation, on their side, as well as legal assistance from the Attorney General's Office.
And some law-enforcement officials complained that prosecutors weren't aggressive enough in pursuing the death penalty, claiming that the threat of capital punishment was being used as a chip to gain plea bargains. But if death sentences weren't carried out, they argued, the threat of capital punishment would not work as a deterrent to crime.
Two members of the Colorado Supreme Court, Justices Howard Kirshbaum and George Lohr, came under fire for saying that the death penalty was unconstitutional in voting to overturn the sentences of Frank Rodriguez, Gary Davis and Ronald White. Because theirs was the minority opinion, the sentences were upheld. But that didn't prevent former governor Dick Lamm, who'd appointed both Kirshbaum and Lohr to the court, from vowing to vote them out when they came up for retention in 1996 and 1998, respectively. "We ostensibly have the death penalty, but it's a cruel hoax," Lamm said. "It's a legislative illusion...Both of these judges disregard the vote of the people and are writing their own social policies."
State senator Bill Owens accused the Colorado Supreme Court of setting up a roadblock to executions. "The will of the people has been thwarted by the Colorado Supreme Court," he said.
By early 1995, the legislature was willing to let a judge decide the will of the people. State senator Ray Powers, a Republican from El Paso County, introduced a bill that would take the death-penalty decision away from jurors and instead give it to the judge who presided over the trial.
The Colorado Criminal Defense Bar and the Colorado Public Defender's Office, as well as traditional opponents of the death penalty, fought hard against the proposal. Prosecutors would find it easier to win death sentences from hard-hearted judges, they complained. If the death penalty was to be used at all, it should be because a jury of the defendant's peers had made the decision.
Powers had the backing of both police associations and the Council of District Attorneys, although not everyone favored a single judge making the decision. Many DAs, including Adams County's Bob Grant, who'd been elected to his post in November 1992, Jefferson County's Dave Thomas, and Bill Ritter, who'd taken over when Early had stepped down and had then been elected to continue as Denver DA in 1994, supported the idea of a panel of judges. They thought the system should still have a deliberative process and opportunity for debate, if for no other reason than that there was less chance of a sentence being overturned if several judges, rather than a single judge, kept an eye on the legal issues.
Even Governor Roy Romer preferred a three-judge panel, the system used in Nebraska, and said he'd refuse to sign legislation creating a single-judge system. Ultimately, the measure's proponents settled for the compromise, although some, including Powers, weren't too pleased by it.
District attorneys came to legislative hearings armed with assorted travesties of justice under the jury system. Grant, for example, used the case of Allen Thomas Jr., who'd broken into the home of a 71-year-old woman to get money for drugs, but wound up raping and beating the woman, then slashing her throat. Because an Adams County DA's employee was peripherally involved as a witness, the case had been moved to Arapahoe County, where it was tried by prosecutor Eva Wilson.
Thomas was convicted of first-degree murder after deliberation. But when it came time for the jurors to deliberate the evidence presented at his death-penalty hearing, one juror refused to participate. No amount of reasoning by the other jurors could budge her. The other eleven jurors went through the four-step process anyway. They agreed that the prosecution had proved its aggravators, which outweighed any mitigators. Once again, it was the fourth step that tripped up the prosecutors; once again, all it took was a single juror.
Prosecutors told legislators that a panel of judges -- who would rule based on the law, not emotions -- would bring "consistency" to death-penalty decisions. They said they were also thinking of future jurors, who would have the time-consuming, stressful death decision lifted from their shoulders; instead, it would be borne by judges, who were better equipped to handle it.
Ritter said he didn't know if the ultimate outcome in the Fears or Tenneson cases would have been different if judges had made the decision, but he testified that placing such an emotional burden on private citizens was asking too much.
"Death is different" is a common saying in the judicial system. In one sense, the comment reflects the huge workload engendered by death-penalty cases, including a mountain of legal paperwork created before, during and after the trial and subsequent hearing. And if the defendant is sentenced to die, several more mountains are created during appeals at the district, state and federal levels. But there's also an emotional load, not just for friends and families of the victims, but also for prosecutors and defense attorneys who try the cases, as well as the judges who preside over them.
The emotional load was particularly heavy for jury members. To hear a case carrying a potential death sentence, jurors had to be "death qualified," which meant that regardless of their personal feelings about the death penalty, they had agreed that they could, and would, participate in the step-by-step process that might lead to a death sentence. Defense lawyers had long complained that such qualifying tilted the playing field toward the prosecution. But without it, a juror might be seated who was adamantly opposed to the death penalty, making the entire penalty phase an exercise in futility before it even began. For prospective jurors to say they didn't approve of capital punishment did not always get them excused from duty, however; unless they demonstrated to the judge's satisfaction that they would never impose the death penalty no matter what the law said, they were still eligible.
While for non-capital cases, jury selection rarely lasts longer than a couple of days, and usually closer to a few hours, the process was much more complicated when the crime was murder and carried the possibility of a death-penalty sentence. Simply selecting twelve jurors and usually four alternates could take weeks. Knowing that lawyer challenges and a general reluctance to serve on death-penalty cases cut into the pool, court administrators often called in hundreds of prospective jurors to ensure that there would be enough to choose from. Because the trial would likely run long and then might move into a second phase, judges often were inclined to let people off on "hardship" excuses -- the housewife with young children at home, for example, or the small-business owner who couldn't afford such a loss of time. But once solid citizens with jobs and inescapable responsibilities were dismissed, the jury pool was not just smaller, it was narrower and less representative of the community.
Lawyers took particular care when choosing juries for death-penalty cases. They phrased their questions carefully during voir dire, when they could quiz prospective jurors. Lawyers from both sides had a limited number of peremptory challenges with which they could dismiss someone without giving a reason. But they could also challenge the seating of a juror "for cause" -- if, for example, a juror had already formed an unalterable opinion about the case based on media reports. The judge had to agree to any "for cause" dismissals, and the other side had the option of arguing against them.
Attorneys for both sides wanted to determine which potential jurors might say they were willing to take the steps to determine if a convicted criminal should be put to death but would balk at actually doing so; they needed to know who would be willing to carefully weigh the evidence and do the right thing, no matter how many weeks, even months, they'd been sitting in a courtroom.
But while serving on a death-penalty case could be a lengthy ordeal for a juror, judges were paid to make difficult legal decisions every day. In fact, a death-penalty case was the only one in which the judge did not sentence the defendant -- and that included first-degree murder cases for which the death penalty wasn't sought. Making those tough calls was the judge's job.
A Talmey and Associates poll showed that 62 percent of the Colorado population approved of taking the death-penalty decision away from juries and giving it to judges. Although the defense bar fought it bitterly, lawmakers approved the proposal to replace juries with three-judge panels. Under the bill, each panel would consist of the trial judge and two judges selected by a computer at random from that judicial district and neighboring districts. The measure didn't outline how the judges were to arrive at their conclusion, nor did it take note of the fact that the judges were not required to be "death qualified," as jurors assigned to such cases had been.
Passed in the 1995 legislative session, the new system was to go into effect for murders committed after July 1, 1996.
Public defender Terri Brake already had tears in her eyes when she began her opening statement at Robert Harlan's death-penalty hearing. "This is the hardest thing I've ever done, to stand here with Robert's life ...," she said, her voice cracking. "I feel like it's in my hands, and it's tough.
"You have assured with your verdict that he will perish in prison. You have assured with your verdict that he will die a captive man, as punishment for what he has done...Robert Harlan will die in prison."
It was June 22, 1995. Unless the new death-penalty statute was thrown out by a higher court, this would be the last time that Brake would try to convince a jury to spare the life of a killer. At the start of the trial, she and her co-counsel, Kathleen Lord, had admitted that their client had murdered Rhonda Maloney. But they'd also maintained that the murder was a crime of opportunity rather than a premeditated act. Harlan had been driving along and stopped to render assistance, and then everything had turned sour. Drugs had caused him to do what he did to Maloney, they'd contended.
But the jury hadn't bought it and found Harlan guilty of first-degree murder after deliberation, first-degree sexual assault and kidnapping. Then it was on to the death-penalty hearing.
Opening for the prosecution, DA Bob Grant argued that Harlan killed Maloney to avoid being arrested for her rape and kidnapping. The state was seeking four other aggravating factors that made Harlan eligible for the death penalty, he said, including the fact that the murder was committed in a "heinous, cruel and depraved manner."
Brake was fighting to save her client's life. "You deserve to hear more than just a very small piece of a person," she told the jury. "We as citizens don't condemn people for only the bad things that they do. We listen to it all. We will show you the value that exists in Robert Harlan that you deserve to know about."
The crimes for which Harlan had been convicted "were evil acts," she admitted. "Nobody's denying that. But the soul of the man is not evil. You cannot kill only a small part of another life...If you decide he must die, then the good dies with him."
Brake had to pause several times during her one-hour opening, and she got several jurors crying along with her. At one point, the judge halted the proceedings so that the jurors could compose themselves.
The hearing was generating a great deal of interest outside of Adams County. Jeffco DA Dave Thomas and two of his prosecutors were there; the preliminary hearing of Albert Petrosky was less than a week away. Two months earlier, on April 28, Petrosky had driven to the grocery store where his estranged wife, Terry, worked. He'd shot her to death, then turned the gun on Dan Suazo, the 36-year-old store manager, and killed the father of two. In the parking lot, Petrosky had set up a sniper position with a high-caliber rifle: He then shot and killed the first police officer to arrive on the scene, Jefferson County sheriff's deputy Terry Mossbrucker, a father of six. One of Petrosky's public defenders, Jim Aber, sat on the defense side of the aisle at Harlan's hearing. And Arapahoe County Chief Deputy District Attorney Jim Peters was also watching this first day of arguments, in order to prepare for Nathan Dunlap's upcoming death-penalty hearing.
The prosecutors presented evidence that Rhonda was not Harlan's only female victim. One woman testified that she'd been sexually assaulted by Harlan in the bathroom of his house; another claimed he'd tied her up and raped her for two hours at his grandmother's. Female co-workers reported that he'd sexually harassed and frightened them. His ex-wife, Colleen Harlan, testified that he'd told her he drove around at night, looking for women walking alone so that he could think of ways to rape and kill them, then get away with it.
In her opening, Brake had promised that she'd call many witnesses -- including Harlan's parents, siblings, former teachers and friends -- to testify about his good side as a loving father, son, brother and friend. Belt Harlan, a Denver police detective, had done his duty when he'd turned in his son after another son showed him Robert's bloody clothes and a gun. But it was as a father that Belt Harlan addressed the jury.
Killing his son wouldn't help "bring that lady back," he pleaded. "If you ask me if I'm begging for my son's life, yes. If you ask me if you should kill him, no. If this comes about, I'll accept it as God's will. But I'm begging you not to kill him."
On July 1, the jury returned with its verdict: Robert Harlan would be the first man in four years to be sent to death row.
Harlan showed no reaction other than to pour himself a glass of water. "I think the only thing he has remorse for is that he was caught," Donna Sutherby, Rhonda Maloney's mother, told a reporter. "The only thing I'm sorry for is that he will not die the same way my daughter did."
Although it had been almost thirty years since Colorado had executed a killer, DA Grant told the press that he was confident Harlan's death sentence would be carried out. And he contended that the death penalty deterred a certain type of killer.
"I believe that folks commit murder for a number of reasons, and some of them commit them in a calculated, planned fashion," the DA said. "And for those people, the operation of the death-penalty statute can and will be a deterrent. And if it stops one person -- just one person -- from being killed in the state of Colorado, it's absolutely appropriate."
"If not now, when? If not this, what? If not him, who?"
Arapahoe County prosecutor Eva Wilson strolled near the defense table where Nathan Dunlap sat, staring. She was trying to convince a jury of El Paso County citizens that Dunlap should die.
Dunlap's attorney, Forrest "Boogie" Lewis, had persuaded Arapahoe County District Judge John Leopold that extensive pretrial publicity could prevent his client from receiving a fair trial. For that matter, Lewis himself had been on the receiving end of death threats. But the change of venue didn't make a difference for Dunlap. On February 26, 1996, after a five-week trial, the jury had returned with four guilty verdicts for first-degree murder after deliberation, a verdict for each of his victims.
During the penalty phase, the prosecution presented 28 possible aggravating factors. The murders had been committed because Dunlap wanted revenge for being fired, wanted to rob his former employer, had a desire for fame. And they were also committed, the prosecution argued, because Dunlap, who was black, was motivated by racial hatred for his white victims.
The defense attorneys countered that their client had grown up in a dysfunctional family. Dunlap, Lewis said, was a "human wreck" whose upbringing had left him unable to distinguish between right and wrong.
Lewis told the jury he understood the community's outrage. "If you choose to kill my client on the facts of this case, I will respect that," he said. "Nathan Dunlap chose to kill. He should be held accountable. He has been held accountable. But you have a choice now, too. Choose life. Not violence. Not killing. But life."
During her rebuttal, Wilson noted that "there's one person who isn't grieving for the victims." She turned to face Dunlap, who didn't look up. "There's one person who hasn't shed a tear or shown remorse. We ask you to come up with a verdict that remembers the victims. Remember the bloom of life. Remember the youth. Remember the promise. Remember the innocence.
"Remember how no mercy was shown."
The jurors remembered, and they unanimously agreed that the prosecution had proved every one of its 28 aggravating factors. After only five hours of deliberations, the jurors returned with four death sentences, which Leopold read as Dunlap sat with his chin in his hand, showing no reaction.
A month after Dunlap received his death sentences, the statute calling for a three-judge panel took effect. There were now five men on death row.
Three of them were there for raping, torturing and killing women, although only one had specifically targeted his victim. Another prisoner was there because he'd made a habit of killing men, two of whom had died quickly. The fifth was on death row because he'd methodically killed four people in cold blood, motivated by nothing more than a desire for revenge and notoriety.
They lived in five seven-foot-by-twelve-foot cells, each of which contained a steel sink, steel table, steel shelf and, anchored to the floor, a steel stool and bed. The bed held a thin mattress, sheets, a pillow and blankets. Each cell also had a black-and-white television that received only local channels and educational programs. The door to the cell was solid steel, except for a one-foot-square window and a slot for passing plates in and out.
Each resident of death row had very little human contact other than meetings with his lawyer and one hour per week with one visitor. They remained in their cells 23 hours a day, with an hour out for exercise or showering.
By now, Frank Rodriguez, whose execution date had come and gone a number of times, symbolized a death-penalty system so mired in paperwork and legal maneuvering that it could not serve its original purpose. And in November 1996, U.S. District Judge Wiley Daniel postponed Rodriguez's execution date yet again so that his lawyer, David Lane, could work on another appeal.
Denver Deputy District Attorney Craig Silverman told the Rocky Mountain News that the paperwork for Rodriguez's appeal would create a stack several feel tall. That pile included hundreds of reasons why the defense counsel thought that the verdict should be overturned, and each one required prosecutorial replies to the contrary. Silverman estimated that Rodriguez's appeals would keep him alive until at least 1998.
It was "unconscionable" that Rodriguez hadn't been executed, he said.
That same month, however, a federal appeals court upheld Davis's sentence. By the fall of 1997, he was out of options.
On October 13, 1997, the morning of Davis's execution, Rod MacLennan drove to Cañon City. More than eleven years had passed since his daughter's murder, and he knew that anyone who said time heals all wounds had never had a child raped and killed.
He thought of Ginny often, especially on holidays or her birthday. Or when he saw her kids playing basketball for their high school and thought, Gosh, she would have been so proud.
But he was tired of thinking about Gary Davis. Tired of the appeals, tired of being reminded that Davis was alive while Ginny was dead.
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At the prison, MacLennan and the other official execution witnesses were led into a room and seated. A curtain was pulled back, and there, on the other side of the window, was the 53-year-old object of MacLennan's hatred. A minister was with Davis, holding his hand, whispering in his ear. Davis looked drugged, sleepy.
MacLennan couldn't help but think about the difference between this death and the one his daughter had suffered. This wasn't justice. Maybe if Davis had been stripped of his clothes, raped, then dragged into the execution chamber by a rope around his neck and forced to beg for his life before being riddled with bullets -- maybe that would be justice.
Davis turned his head and looked at the witnesses. Then he shut his eyes as though he were going to sleep. How lucky you are, MacLennan thought. I don't feel sorry for you -- not one little bit.
Read more Westword coverage of Colorado's death penalty in Penalty Zone