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.