The Waiting Game

Death is different," fellow jurists told District Judge Frank Plaut as he prepared for his first capital murder case, the trial of Robert Riggan Jr. on charges of first-degree murder in Jefferson County. But how different, even they couldn't have predicted.

In mid-October, Riggan went on trial for the murder of Anita Paley, a 21-year-old prostitute, crack addict and mother of two girls who'd been found fatally injured in May 1997 ("Trial and Tribulations," November 19 and November 26). On October 27, Riggan was convicted on one count of first-degree murder for killing Paley while sexually assaulting her. (The jury, which had been reduced by one when a juror became ill, hung eight to three on a second count.) That meant Riggan would move on to the death-penalty phase of his trial--but not too fast, as it turned out.

For the second time in as many Jeffco first-degree-murder trials, the death-penalty phase for a convicted defendant was put on hold while the Colorado Supreme Court pondered a question of procedure.

Plaut, who spent forty years in private practice dealing primarily with civil cases before joining the bench two years ago, concedes that the Riggan case has been more trying, both emotionally and legally, than he'd expected. While defense attorneys complained early and often about some of Plaut's decisions, even at one point contending that he was unfair, two incidents in particular raised concerns about potential appeals.

One was Plaut's decision that while Riggan was competent to stand trial, he was not competent to act as his own attorney, as Riggan had requested. But while Colorado law essentially says if a defendant is competent for one, he's competent for the other, Plaut points out that Riggan eventually agreed to go forward with attorneys Nathan Chambers and Dennis Hartley.

The second incident occurred at trial. Jurors are routinely admonished not to read newspaper articles or follow news accounts regarding the case they're considering. During Riggan's trial, however, one woman admitted to her fellow jurors that she'd read a portion of a newspaper story about the case. After the jury found Riggan guilty, another juror told Westword about the woman's admission. When Westword asked the Jeffco District Attorney's Office about the claim, the DA's office informed the judge and the defense attorneys. The juror was called in and questioned; she told Plaut she'd read just a portion of the article and it hadn't swayed her opinion. (This juror, in fact, was one of the last holdouts before the conviction on count one and among the three who refused to convict on the second count.) Plaut determined that the article contained only information the jury had heard and was therefore not prejudicial.

But Plaut's post-conviction work was just beginning. "The defense has filed twenty motions already," he says. "One is, they asked that none of the judges read newspaper articles about the case or watch television accounts. I'd already read some things...but I felt it was reasonable, so I granted that. Another is, they believe that the way the law reads, all three judges should rule on everything, including all those motions."

Three years ago Colorado legislators voted to put any death-penalty decision in the hands of a three-judge panel. One of the trio was to be the judge who'd presided over the trial at which the defendant had been convicted; the other two would be chosen at random from the ranks of Colorado jurists. These three judges, not a jury, would decide whether the convicted murderer would receive life in prison without parole or be given a lethal injection.

Following Riggan's conviction, district judges Jack Smith of Arapahoe County and R. Brooke Jackson of Jefferson County were selected by computer to sit on the panel with Plaut. Smith has presided over a murder trial before; Jackson was just sworn in as a judge midway through Riggan's trial.

Although Riggan's death-penalty hearing before those judges had been scheduled to begin December 15, Plaut decided to continue it until the higher court determined how the death-penalty phase of an earlier Jeffco trial would be conducted. Francisco "Pancho" Martinez was convicted on September 3 for his role in the May 1997 rape, torture and murder of fourteen-year-old Brandaline Rose Duvall by members of the Crenshaw Mafia Gangsters Bloods gang. His death-penalty phase, scheduled to begin November 17, was to be the first in the state heard by a three-judge panel. But then Martinez's defense team asked the state supreme court to hear what is known as a Rule 21 motion, which deals with how evidenciary material is handled.

When creating the death-penalty panel system in 1995, state lawmakers also changed the standards for exchanging evidence in those murder cases. While the prosecution has always had to share its evidence with the defense, under the new law, defense attorneys are also supposed to divulge everything they learn about their client's character from witnesses they intend to call on his behalf, as well as a list of those witnesses.

Martinez's attorneys complained to the high court that such material is "work product," normally protected from discovery by the prosecution; they also contended that to release the witness list would reveal their defense strategy. The court, which rarely grants a Rule 21 motion, decided to consider this pleading and stayed any further proceedings in the Martinez case ("Death Takes a Holiday," October 15). Whichever way the state supreme court ruled, however, it would not affect the Martinez conviction----only the procedure regarding evidence for the death-penalty portion of his trial.

With the Martinez trial on hold, it appeared that Riggan would be the first to fight for his life before a panel of judges. But shortly after his conviction, his attorneys filed a Rule 21 motion on issues similar to those in the Martinez case. "I was ready to go forward and begin hearing the evidence," Plaut says, but at the urging of both prosecution and defense attorneys, he decided to postpone the Riggan death-penalty hearing until the Martinez motion was decided.

The court's unanimous decision came down Monday, in favor of the prosecution. Defense attorneys will have to hand over everything, just as the other side does. In her decision, Justice Rebecca Kourlis noted that the justice system is "not yet a poker game in which players enjoy an absolute right always to conceal their cards until played." The disclosure of such information will make the system more fair for both sides, the justices decided.

The prosecution was "pleased," says Mark Randall, one of the deputy district attorneys on the Martinez case. "But it wasn't a surprise--that's what the statute says." The prosecution team has asked the court to schedule a new date for the death-penalty hearing, he adds, but it has to be determined: There's a concern that the Martinez hearing could conflict with a related murder trial. The attorneys who prosecuted Francisco Martinez have a trial against another defendant in Duvall's murder--Daniel Martinez Jr., no relation--scheduled for February 16.

While Randall thinks the Martinez death-penalty hearing will go ahead of Riggan's, Plaut is still waiting to learn the date when his panel of judges meet. Sometime shortly after that, Robert Riggan will know his fate.

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