THE FIRST ROUND -- Judge sentencing is initiated
Last Spring, death penalty opponents in Colorado watched closely as five sentencing hearings took place. These were the first cases to proceed to sentencing by three-judge panels, and some were expecting the worst. We all knew that the prosecutors who had pushed the legislature to take death penalty cases away from juries did so because they believed they would get fewer verdicts of life.
Of these first five cases, however, only one resulted in a death sentence. In two of the cases, the judges unanimously imposed a life sentence. In two other cases, one of the three judges on each panel decided that death was not appropriate, and life sentences were imposed. The two judges who chose life in the Danny Martinez and Lucas Salmon cases were then subjected to intense criticism in the press.
Robert Riggan, Jr. was the first person to have his fate decided by a panel of three judges. He had been convicted in Jefferson County in the death of a 22-year-old woman. Mr. Riggan was represented by Nathan Chambers and Dennis Hartley, who presented evidence that he came from a "horribly dysfunctional" family and suffered from antisocial personality disorder. On April 16, 1999, Judge Frank Plaut, Judge R. Brooke Jackson and Judge Jack Smith sentenced him to life without parole. According to the Sentencing Order, the judges were swayed by the fact that the jury had convicted Mr. Riggan of felony murder and had been unable to agree that he committed murder after deliberation. This deadlock could have meant that jurors had accepted the defense theory that the victim suffered the fatal brain injury when she jumped or fell from his van. The judges wrote that "a civilized society should not and cannot take the life of a human being, even one who commits an especially heinous, cruel and depraved offense, if a jury could not conclude beyond a reasonable doubt that the individual in fact administered the fatal injury."
Danny Martinez was convicted in Jefferson County as an accomplice to murder after deliberation. He did not personally stab the victim, a 14-year-old girl, but participated in the sexual assault and kidnapping which resulted in her death. On May 7, 1999, Mr. Martinez was sentenced to life in prison because Judge John Coughlin believed that mitigating factors outweighed aggravating factors and that the death penalty was not appropriate. Judge Leland Anderson and Judge Timothy Fasing disagreed, and voted for execution. Judge Coughlin found mitigating factors based on Mr. Martinez' intoxication on the night of the crime and his relatively minimal degree of participation in the murder itself. Judge Coughlin also noted that executing Mr. Martinez was unnecessary because he would not be a threat to society while imprisoned for the rest of his life. Mr. Martinez was represented by Forrest Lewis and David Lindsey.
Jacques Richardson was convicted in Denver of killing a young woman during a burglary. The manner in which he tied the victim before he left her apartment resulted in her death by ligature strangulation. Jurors convicted Mr. Richardson of felony murder, but acquitted him of murder after deliberation. On May 7, 1999, Judge J. Stephen Phillips, Judge Paul Markson and Judge Joseph Meyer found that a prior conviction for sexual assault was an aggravating factor, but did not find that the murder was especially heinous, cruel or depraved or that it was committed to avoid arrest. As in the Riggans case, the crucial fact was that Mr. Richardson had not been convicted of murder after deliberation. The judges held that the absence of intent was a mitigating factor which "tipped the scale" in favor of life. Terri Brake and Steve Flavin of the state public defender's office represented him.
Francisco Martinez was sentenced to death in Jefferson County on May 27, 1999, despite a valiant effort from his lawyers, David Kaplan, Pat Ridley and Dean Neuwirth. Mr. Martinez was the person who actually stabbed the 14-year-old victim in the case in which Danny Martinez was spared by the vote of one judge. The case was the subject of a series of articles in a Denver alternative newspaper, describing how the victim was raped by Mr. Martinez and member of his gang and how she begged for mercy when the group decided to kill her. Judge Michael Villano, Judge Robert Hyatt and Judge Deanna Hickman found five aggravating factors, including the heinous, cruel and depraved factor. They identified two mitigating factors because Mr. Martinez had endured a difficult and unsettled childhood and because there was some evidence that he suffered from bipolar disorder and post-traumatic stress disorder. However, the judges believed there was no link between these mental disorders and the crime. The panel then concluded that aggravation outweighed mitigation, and that Mr. Martinez should be executed. In deciding that death was appropriate, the judges focused on "the horror of the crime" and on his apparent lack of remorse. His criminal record and other violent acts which had not been prosecuted also were significant to the panel, which believed that he would continue to be dangerous in prison.
Lucas Salmon was convicted in Colorado Springs of the kidnapping, sexual assault and murder of a college student in what was described as a "sadistic fantasy." Judge David Parrish and Judge Peter Booth, both from Colorado Springs, believed he should be sentenced to death. Judge James Frasher from Pueblo was vilified by the media and many citizens when he disagreed and a life sentence resulted. All of the judges found five aggravating factors, with the most important being the heinous, cruel and depraved manner in which the crime was carried out. The panel also found a number of mitigating factors, based on evidence establishing that Mr. Salmon had significant mental and emotional impairments, but agreed that mitigation did not outweigh aggravation. Despite this, Judge Frasher went on to conclude that a death sentence was unnecessary to protect society and could only be justified by an inappropriate desire for vengeance. He recognized that a life sentence would not diminish the importance of the victim, or the grief felt by her loved ones. Lauren Cleaver and Mike Enwall represented Mr. Salmon at trial; Bob Pepin then replaced Mr. Enwall.
In sum, judges in Colorado so far have been reluctant to impose the death penalty where the defendant has not intentionally caused the victim's death. Danny Martinez and Lucas Salmon got life sentences because one judge on each panel was able to look beyond the horrifying facts and rationally consider the mitigating evidence and arguments offered by the defense. If sentencing had been solely up to the trial judge in each of those cases, the death penalty would have been imposed on Danny Martinez and Lucas Salmon as well as on Francisco Martinez.
Coloradans Against the Death Penalty Newsletter -- Fall 1999
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