"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.