The Limon Correctional Facility sits atop the lonesome and expansive High Plains of eastern Colorado, halfway between Denver and the Kansas state line. Just south of the small town for which it’s named, the location is a fitting place for a prison. There isn’t much around; the surrounding fields, populated by cattle and crops, appear to go on forever. The only interruptions are the gas stations, budget motels, and fast-food joints off the occasional highway exit. On a cool late-summer morning last year, I drove the 100 miles from Denver to Limon to meet a 35-year-old man named Giselle Gutierrez-Ruiz, who is serving a life sentence for murder.
The fog was so thick I couldn’t see the guard towers or barbed-wire fences of the prison until just before I pulled into the parking lot. After checking in with the guard at the front desk, I walked through a metal detector and passed through a series of mechanized gates, encased in razor-sharp wire, which beeped until they locked into place. I crossed a courtyard the length of a football field, and a second guard directed me through a short hallway and into the visiting room; the space resembled a high school cafeteria. Giselle arrived several minutes later. He wore a green prison jumpsuit and sported a neatly trimmed beard and buzz cut and a pair of thick, black-rimmed glasses.
Giselle and I sat across a folding table from each other and talked for nearly three hours. He spoke in a measured tone and was almost philosophical about his time in prison. He had already been incarcerated for almost 20 years. When Giselle was a teenager, an Adams County judge sentenced him to mandatory life without parole—a punishment the U.S. Supreme Court ruled unconstitutional in 2012. Giselle told me he tries not to spend too much time thinking about all that. As for what took place on the highway that night in 1997: “I never hurt nobody,” Giselle says. “I just got trapped in the moment.”
Mike Riebau’s phone rang on the evening of Wednesday, October 22, 1997. Riebau was an Immigration and Naturalization Service (INS) senior special agent stationed in Colorado; he’d moved to Denver in 1982 and was later selected for a special multiagency drug task force run by the Offices of the United States Attorneys. Riebau spent most of his 33-year career working major drug-trafficking cases, which required him to develop confidential informants in the field. One of those sources, Raul Gutierrez-Ruiz, was on the other end of the line.
During the previous year, Riebau says, he and Raul had developed an arrangement: Riebau made sure law enforcement looked the other way on Raul’s undocumented status so long as Raul fed him solid information he could use to crack big cases. On this particular night, Raul had details about a drive-by shooting that had occurred a couple of days earlier. From a pay phone, Raul explained that he knew the shooter only by his nickname, Guero. Guero had been in Denver less than a month. Raul said he sounded anxious and was talking about skipping town and heading back to California. Complicating matters was the fact that Guero had been in Raul’s car that night, and Raul’s younger brother, Giselle Gutierrez-Ruiz, had been driving.
Riebau told Raul to stick close to his pager; he’d get back to him shortly. In the meantime, he cross-checked the information with a detective friend who worked homicide in Adams County. Sure enough, five days earlier, there’d been two shootings in less than an hour on the highway near the interchange of I-25 and I-76—and the second resulted in the death of a man named Rumaldo Castillo-Hernandez. Two men found him hunched over in his car at the bottom of a highway embankment; the vehicle had sliced through a chain-link fence and landed in a thick patch of trees. What at first must have seemed like a car accident quickly became something else. One of the men found blood under Castillo’s left arm, and it appeared to be coming from what looked like a bullet hole.
Police struggled to understand what exactly had happened. The Adams County Sheriff’s Department investigated whether Castillo-Hernandez’s death and the earlier shooting were related. The two drivers who were targeted didn’t appear to be connected, and there was no apparent motive. A sheriff’s department spokesman told a Rocky Mountain News reporter, “It could be anything at this point.” Based on multiple eyewitness accounts, police did have a description of the shooter’s vehicle, a maroon Buick sedan. Raul owned a maroon Buick. It was a solid lead on a days-old case that had turned up very few of those, and Riebau and the Adams County detective decided to make a move that night.
Riebau paged Raul and walked him through the plan: Raul would tell his younger brother to bring Guero and meet him in about an hour at Sheridan Billiards, a pool hall in southwest Denver. Once Guero showed up, Raul would lure him out of the car and a tactical team would move in and arrest him. At the arranged time, Raul’s teenage brother, Giselle, who had no idea he was part of a setup, pulled into the Sheridan Billiards parking lot. Guero was riding shotgun—and there was a MAC-11 semi-automatic pistol under his seat.
Riebau watched the scene unfold through a pair of binoculars from across the street. Giselle and his nephew, who was in the back seat, climbed out immediately. Guero stayed put. After a few tense moments, Raul finally convinced Guero to get out of the car. Riebau gave the go-ahead, and the tactical team burst out of an unmarked van. They arrested Guero without incident. The team confiscated the handgun. They also handcuffed and arrested Giselle.
Five days earlier, hours before Castillo-Hernandez had been found dead, Giselle borrowed a friend’s car and drove about 20 miles west on I-70 to the Buffalo Herd Nature Preserve in Genesee Park. Giselle discovered the buffalo preserve soon after arriving in Colorado less than two years earlier, and he’d been back at least 10 times. Giselle had always loved animals, but his fondness for this place was about more than wildlife. Breathing the air up there, he felt a sense of freedom, and the landscape reminded him of home.
Giselle was born in Rancho Ruices, a tiny village in the rugged hills of Northern Mexico. Only a few dozen people live in Rancho Ruices; there are no stoplights, there’s no mail service, and the dirt roads double as goat paths. The youngest of 11, Giselle was known throughout town as a good artist. One of his teachers remembers that the other students always wanted to be in Giselle’s group. If there was ever a fight or a disagreement among his classmates, Giselle was quick to intervene. “He was a happy kid,” his sister Lorena Gutierrez-Ruiz says, “always looking out for others.”
For fun, Giselle swam in the nearby river or played on the dusty hills behind his family’s house. He liked sports; basketball was his favorite. He found an old rim, attached it to a long board, and hung the contraption in a tree so he could shoot hoops. Giselle’s uncle raised chickens and roosters, and he let Giselle keep one of the roosters as a pet. Giselle named the bird Hero, and, for a long time, he carried Hero with him everywhere he went.
As the youngest in the family, Giselle was especially close to his mother, Estela Ruiz de Gutierrez. “She was a beautiful mother,” Giselle says. Everyone in town knew Estela well. She acted as the local census taker and briefly served as the police commissioner; she was also a skilled cook. Estela went out of her way to help those who were less fortunate. When a local child lost one of his eyes in a farming accident, Estela made sure he received treatment. The boy had no family, and when he returned to town, Estela took him in and cared for him.
Giselle never really knew his father, who left Rancho Ruices and moved to the United States when Giselle was an infant. (Several of Giselle’s older siblings also left Mexico and settled in Colorado.) Giselle occasionally wondered about his father. Once, he was playing outside and noticed a strange man riding a horse; his stomach knotted into a ball of nervous excitement thinking it might be his dad. He longed for the man to stop and talk to him, but he never did. Giselle gazed at the man’s back as he rode away.
When Giselle was 15, his mother developed a serious form of heart disease. The family drove her an hour to the closest hospital, where doctors treated Estela. She returned home—but she never recovered. Before she died, Estela leaned in and whispered one last thing to her youngest son: She told Giselle to take care of his little nephew, Ruliz, as if he were his brother. Unbeknownst to Giselle, Estela had told Ruliz the same thing.
Several of Giselle’s siblings returned to Rancho Ruices for their mother’s funeral. The entire town, and many from surrounding communities, attended the ceremony. It was around that time the family decided there was nothing left for Giselle in Mexico, that he should live in the United States with his brothers and sisters. Giselle was too saddened by his mother’s death to think about anything else. “I tried being strong, but in my loneliness I did not want to accept the loss,” he says. “Everything was happening so fast.” Not long after the funeral, one of Giselle’s older sisters led him and his nephew on a journey to the United States. They left so quickly they did not say goodbye to anyone.
On his way out of Rancho Ruices, the only place he’d ever known, Giselle passed the cemetery where his mother was buried. One last time, he looked toward her grave. The tombstone was covered with flowers and pink ribbons. “It was only a glance,” he says. “But I could see it.”
When Giselle arrived in Denver, everything was different. There was no one like his mother to take care of him, and the 15-year-old bounced around, living at various apartments and duplexes with his brothers and sisters. Giselle attended West High School but dropped out in part because he didn’t speak English. Giselle’s brother Raul would occasionally bring Giselle along to help on jobs installing Sheetrock. Raul was always the brother Giselle most looked up to.
Not long after coming to Colorado, Giselle found comfort in the mountains. In his free time, he’d drive to Boulder and sit by the creek in the shadow of the Flatirons, dipping his toes into the rushing water. Eventually, he discovered the buffalo preserve in the hills west of Denver. From up there, the city looked small, like it was manageable. After spending part of his morning at the preserve that Friday in October 1997, Giselle drove back down the hill. That night, he went out to a dance club in Thornton called La Fantasia. Giselle liked to dance, and he often went to the club with his brothers and people they knew. According to court documents, Giselle left La Fantasia that night around 10:30 p.m. with a man named Guero.
The night of the bust at the pool hall, Adams County detectives wanted to question Giselle about the shootings, and he agreed to speak with them at a Denver police station. Since he was not yet 18, police contacted Giselle’s father—a man Giselle hardly knew—to sit in on the interview. Raul was also present. Following protocol, the detectives had Giselle and his father sign a juvenile advisement waiver, which indicated Giselle agreed to speak with police voluntarily and that he agreed to do so without an attorney present.
Police questioned Giselle through a Denver Police Department translator until 3:30 a.m. the following morning. Giselle’s father and brother encouraged Giselle to tell the police the truth. They thought that because Giselle was a minor and didn’t actually shoot anyone, he wouldn’t be in trouble. Giselle says he felt like he was doing the right thing when he detailed everything he knew about that night: how he was driving his brother’s car on the highway and that Guero twice shot at other vehicles from the passenger’s seat but that he was scared and didn’t know anyone had been injured. Giselle says his family gave him the impression that after he spoke to the detectives he would be able to go home.
Instead, he unknowingly incriminated himself by confirming that Guero was responsible for both shootings and explaining what took place in between: After the first shooting, Giselle said Guero told him to drive to a girl’s house near the intersection of 26th Avenue and Sheridan Boulevard. Giselle said they were “there for a while,” he wasn’t sure how long, and that they eventually returned to the club.
As police concluded their questioning, Raul asked what was going to happen to his younger brother. One of the detectives explained Giselle would be held in jail and might face a weapons charge but that the final decision would be up to the Adams County district attorney. Raul tried to reassure his brother that everything would be OK. After the arrest, one of Giselle’s sisters, Kelly Gutierrez-Ruiz, got a call in Mexico from Raul; she says Raul cried into the phone as he explained what had happened. Giselle was in jail.
Four days later, Adams County District Attorney Bob Grant charged Giselle with first-degree murder and first-degree assault. Even though Giselle was 17 years old, legally a juvenile, Grant filed the charges in adult court. Because of the way Colorado sentencing laws were written at the time, that decision meant that if a jury found Giselle guilty, he faced a steep mandatory prison sentence: life without the possibility of parole.
The trial opened in an Adams County courtroom on the morning of July 7, 1998. Giselle had spent the previous nine months locked up in county jail. Initially, he was placed in solitary confinement. Later, he was moved to a cell with two others who spoke Spanish. Most teenage boys spend their 18th birthdays with their friends at the movies or at a party sneaking drinks from the liquor cabinet; Giselle’s came and went with little fanfare in a cold jail cell. One of Giselle’s cellmates remembers Giselle was “quiet and did not want to talk.” On one of the rare occasions he did speak up, the cellmate recalls Giselle crying and saying he was in for a drive-by shooting but that it wasn’t his fault.
Giselle was tried for murder under Colorado’s complicity statute. The law states that a defendant can be punished for a crime someone else committed if, “with the intent to promote or facilitate the commission of the offense, he or she aids, abets, advises, or encourages the other person in planning or committing the offense.” According to the law, if Giselle was in on the shooting—if he knew what Guero was planning to do or helped him pull it off—he was guilty of murder, even if he never pulled the trigger.
After Giselle’s arrest, the family pooled enough money to hire attorney Wesley Miller. They turned to Miller because he’d previously represented two of Giselle’s older brothers on drug charges. Miller, however, had made a career out of cutting deals on drug cases. He was also battling emphysema. During Giselle’s trial, Miller passed many of the responsibilities to his co-counsel, Bruce Heilbrunn, who’d worked criminal cases before, but never a murder trial.
The prosecution team consisted of Brian McCoy and David Juarez, both deputy district attorneys. In his opening statement, Juarez laid out a straightforward argument. He told the jury that on the night in question, there’d been two shootings in locations close to each other on the highway and that the second shooting resulted in the death of Rumaldo Castillo-Hernandez. Police recovered shell casings from both scenes that were similar to the bullets found in the victims’ cars. Juarez cited a statement from the victim of the first shooting, who told police, “This guy in a maroon Buick comes up and he starts shooting at the back of my truck, speeds up, goes past me continuing to shoot.”
Juarez then explained that the defendant, Giselle Gutierrez-Ruiz, was the driver; he said Giselle acknowledged that detail in an interview with police. There was one more thing, he said, that showed Giselle acted with intent to aid Guero: One of Giselle’s cellmates, a man named Carlos Perez, relayed to an investigator that Giselle said, “When this thing was happening, the guy was veering really close, changing lanes, crossing lanes. I handed the gun to Guero, and Guero shot him.”
Heilbrunn addressed the jury next. Giselle sat there silent, looking withdrawn. Heilbrunn used the word “chauffeuring” to describe his client’s actions. It was as simple as that, he said; Giselle had only known Guero for about a month and was “surprised” when he opened fire “out of the blue” around 10:45 p.m. The second shooting took place about 30 minutes later. “And again,” Heilbrunn said, “Mr. Gutierrez is scared. He’s got a madman in his car.”
Heilbrunn also argued that the statement from Giselle’s cellmate simply wasn’t true—Giselle’s fingerprints hadn’t been found on the weapon. He suggested Perez had only told police that to cut a deal on reduced jail time. “Giselle Gutierrez,” Heilbrunn said, “did not aid, encourage, or even know that the passenger in his car was going to shoot. At the end of this case, I will remind you that mere presence is not enough, and I will ask you to return a verdict of not guilty.”
During the next two and a half days, the prosecution presented a methodical and thorough case, calling 35 witnesses—detectives, forensic experts, highway witnesses, medical professionals, Giselle’s cellmate, and even Giselle’s brother, Raul. Heilbrunn’s defense lasted 30 minutes. Heilbrunn called two witnesses, both aimed at discrediting the statement by Giselle’s cellmate, Perez, about Giselle handing Guero the gun. One was Perez himself, who was combative and refused to answer questions directly. The other was veteran investigator Jimmy Spence, who had interviewed Perez in jail. One of the jurors, David Thomas, says, “I don’t think anyone believed [Perez].”
Spence, who’d been hired by Miller and Heilbrunn and was the only member of the team who spoke Spanish, says they tried to get Giselle to testify, told him to just get on the stand and tell his story. But Spence says Giselle backed out at the last minute. “I think he was just afraid,” Spence says. “He didn’t know what the heck to do.” And so Heilbrunn rested his case. The jurors spent more time at lunch that day than they did listening to Heilbrunn defend his client.
The jury returned a guilty verdict the following afternoon. After the trial, Spence spoke with some of the jurors about the verdict. One juror, he says, justified the decision by saying, “They’ll just give him a slap on the wrist.” In Colorado, except in death penalty cases, attorneys are not allowed to discuss a defendant’s possible punishment. (That information can be considered prejudicial or irrelevant under the Colorado Rules of Evidence because sentencing is a function of the court, not the jury.) When Spence explained that Giselle’s conviction carried a mandatory life sentence, the juror, he said, was shocked.
Indeed, Giselle’s sentencing hearing, which took place five days after the trial, was merely a formality. Typically, the defense has an opportunity to present evidence about its client’s character or the circumstances of his or her life, anything that might persuade a judge to deliver a more lenient sentence. In Giselle’s case, because of the mandatory sentence, no such evidence was allowed—it wouldn’t have mattered. Due to the nature of Giselle’s defense at trial and the structure of the state’s sentencing laws, neither the jurors nor the judge ever heard Giselle’s story—who he was and where he came from. They’d been tasked with deciding the fate of a teenager whom they knew nothing about.
Before the judge imposed the mandatory life sentence, Giselle addressed the court. Through a translator, he said, “I’m very sad for everything that’s happening. I don’t know what’s going to happen or anything. That is all.” Giselle, a bewildered 18-year-old, left the Adams County courtroom that day in the custody of the Colorado Department of Corrections. It would take the American legal system another 14 years to catch up with the gravity of the circumstances that led to Giselle being sent to prison for life.
For someone who has spent the past decade as a defense attorney, Ashley Ratliff, who is 37 and the mother of two young children, has an uncharacteristically bubbly disposition. She often expresses her thoughts on a case by drawing a colorful diagram or picture, though she’s quick to admit she’s not much of an artist. She readies herself for stressful court appearances and face-to-face visits with imprisoned clients by blaring upbeat music in her car, everything from Taylor Swift to the Beastie Boys.
Ratliff specializes in juvenile defense and runs her own practice out of a small single-story building on Bannock Street in the Golden Triangle neighborhood. A large corkboard hangs on the wall behind her desk, cluttered with her children’s artwork, letters from clients, and work-related memos and reminders. One handwritten note occupies a prominent spot, a piece of white paper that references a 2010 U.S. Supreme Court decision, Graham v. Florida: For a juvenile offender who did not commit homicide the Eighth Amendment forbids the sentence of life w/o parole.
Giselle had already been incarcerated for 13 years by the time Ratliff found her way to his case. She’d taken it on at a pivotal moment in her life: Ratliff and her husband had recently had their first child, and she’d left her job with the Colorado Office of the State Public Defender to spend more time with her family. She also wanted to focus more on juvenile defense. Her last day as a public defender was a Friday; the following week, she met with the executive director of the Colorado Juvenile Defender Center (CJDC), a nonprofit that advocates for excellence in juvenile justice. Ratliff was interested in taking on a couple of cases part time, and CJDC needed the help.
The previous year, in May 2010, the U.S. Supreme Court had issued an important decision on juvenile justice. In Graham v. Florida, the court ruled that sentencing a juvenile convicted of a nonhomicide crime to life without the possibility of parole violated the U.S. Constitution—specifically, the Eighth Amendment ban on cruel and unusual punishment. In the wake of the Graham decision, CJDC was tracking Colorado cases that could benefit from the ruling. That day, Ratliff agreed to take three or four folders from a stack labeled “high priority.” Giselle’s was one of them.
Ratliff felt strongly that sentencing a juvenile to life in prison was inherently unfair. As she examined Giselle’s case, she thought the Graham ruling should apply to her client. Although Giselle had been convicted of first-degree murder, it was as a complicitor—he didn’t actually kill anyone. And after meeting with Giselle, Ratliff believed he didn’t know Guero was going to shoot anyone or that anyone had been injured.
Ratliff also learned that at the shooter’s trial, the jury hadn’t convicted Guero of first-degree murder after deliberation; instead, they found the 22-year-old guilty of extreme indifference murder, meaning they believed Guero acted with “extreme indifference to the value of human life” but that he did not act “with intent” or “after deliberation.” If a jury found that Guero didn’t plan to shoot anyone, Ratliff thought, how was Giselle supposed to have known? What’s more, Guero—the man who pulled the trigger—had received the same sentence as Giselle: life without parole. “Giselle’s not proud or happy about being in the car with someone who was doing those things,” Ratliff says. “He’s said, ‘I deserve to be punished for what I did, but I didn’t hurt anyone; I’ve done my time.’ And I really believe that.”
As Ratliff crafted Giselle’s appeal under the Graham ruling, the U.S. Supreme Court released another landmark decision regarding juveniles. In a June 2012 case, Miller v. Alabama, the court took the Graham ruling a step further and stated that sentencing a juvenile to mandatory life without parole—even in homicide cases—was unconstitutional. “Under these schemes,” the opinion reads, “every juvenile will receive the same sentence as every other—the 17-year-old and the 14-year-old, the shooter and the accomplice, the child from a stable household and the child from a chaotic and abusive one.” Miller v. Alabama did not go so far as to outright ban life without parole for juveniles; rather, the court ruled it could not be the only option at sentencing, that juveniles had a right to individualized sentences that considered their “youth and attendant characteristics”—precisely the type of sentence Giselle hadn’t received 14 years earlier.
In the months and years following the Miller ruling, the question became whether the decision should apply retroactively. When the opinion was released, there were about 2,100 people in the country serving mandatory life sentences for crimes they’d committed as juveniles, including 50 in Colorado who received mandatory life without parole for crimes committed between 1990 and 2006. (One has since been released on an unrelated matter, and another died by suicide.) From 1985 to 1990, juveniles convicted of first-degree murder in adult court received life with the possibility of parole after 40 years; before 1985, the sentence was even more lenient. In 2006, the Colorado Legislature returned to the sentence of 40 to life for new cases. The only ones left in question are those 48 inmates.
During the past three years in Colorado, the retroactivity debate has played out in the state Legislature. In 2015, Representative Daniel Kagan proposed a bill that would have given each of the 48 inmates (including Giselle) a resentencing hearing and provided a judge with the option of either life with possible parole at 20 years or a reduced sentence of 24 to 48 years. The opposition was fierce, and Kagan withdrew the bill. District attorneys and victim advocates have argued since the Miller decision was released that it is unfair—and, indeed, cruel and unusual—to ask those who lost loved ones to these crimes to relive the events years later by holding new hearings.
Even if the Legislature did grant 48 resentencing hearings, says Denver District Attorney Mitch Morrissey, whose district contains the highest number of these cases, most of the crimes are so heinous that he believes a judge might send the bulk of the inmates right back to prison for life. “These are the worst of the worst during that period of time,” says Morrissey, referring to the cases in his district. Those who advocate on behalf of the juvenile lifers, as they are often called, see things differently. “I think it’s very simple,” says Mary Ellen Johnson, executive director of the Pendulum Foundation, a juvenile advocacy group. “Do we believe in redemption, or do we believe in retribution?”
After three years without a resolution on the retroactivity question from the state Legislature, the Colorado Supreme Court ruled on the matter this past June. In an opinion that consolidated the cases of three of the juvenile lifers (Michael Tate, Tenarro Banks, and Erik Jensen), the state’s highest court said the Miller decision only applied to cases that were still on their initial appeal. That amounted to two of the 48. (A third case might also apply under the ruling.) Sometime this year, they will be resentenced at separate hearings, during which a judge will determine whether they should be parole-eligible at 40 years or continue to serve life without parole. For the others, including Giselle, the state court ruling provided no relief.
As the 2016 legislative session opens this month, Representative Kagan is again considering sponsoring a bill that would require a judge to resentence the juvenile lifers; he’s also considering other options. “I think the [state] Supreme Court decision in Tate, Banks, and Jensen was stunning,” Kagan says. “I think it was just wrong.”
Twelve states and the U.S. government agree with Kagan: Wyoming, Nebraska, Iowa, Illinois, Texas, Arkansas, Mississippi, Florida, New Hampshire, Massachusetts, Connecticut, South Carolina, and the U.S. Department of Justice have all taken the position that the Miller decision applies retroactively. Colorado, Montana, Minnesota, Michigan, Louisiana, Pennsylvania, and Alabama have said that it does not.
The U.S. Supreme Court may finally end the debate later this year. In October, the court heard oral arguments in the case Montgomery v. Louisiana, in which it could determine whether the Miller decision applies retroactively. The nation’s highest court is expected to release a decision by June.
Over the past five years, while the country sorted through the Graham and Miller decisions, Giselle’s attorney Ashley Ratliff became an expert on the topic. She now chairs a Miller and Graham litigation committee set up by the CJDC, and earlier this year she spoke at national conferences on juvenile defense in Utah and Washington, D.C.
And Ratliff continues to fight Giselle’s case. Initially, the Colorado Court of Appeals granted Giselle a resentencing hearing. While preparing his case, she drew a picture of what Giselle’s life was like to help herself further empathize with her client. She even hired a videographer and traveled to Mexico to interview Giselle’s family and friends. But for the time being, Giselle’s case, which was sent back to the Colorado Court of Appeals, exists in legal limbo. Unless the Legislature acts or the U.S. Supreme Court rules that Miller must be applied retroactively, Ratliff may not get to tell Giselle’s story and share what she sees as the injustices her 36-year-old client has endured. “From the moment I touched his case,” Ratliff says, “I’ve wondered why his attorneys did things the way they did.”
There had been so many new developments in Giselle’s case that Ratliff felt it was time to call a meeting. One morning this past October, five members of Ratliff’s legal team gathered in her office on Bannock; they sat on couches and chairs huddled around a small coffee table. Ratliff looked tired. She’d pulled her hair into a loose ponytail and cradled a mug of coffee with both hands, as if attempting to warm herself from the outside in.
Ratliff said she’d recently connected with one of the jurors from Giselle’s trial, a man named David Thomas. After all these years, Thomas still thought about the trial; he wanted to know more about Giselle and talk about his case. Ratliff shared details Thomas said he’d never heard in the courtroom, like how Giselle says he didn’t know anyone had been injured that night until he was arrested several days later. By the end of their conversation, Thomas says he thought the additional information might have made a difference to the jury.
The more Ratliff learned, the more she believed Giselle’s defense lawyers hadn’t done their due diligence in investigating his case. Miller and Heilbrunn, she says, never drove to the crime scene; never reviewed the tapes of Giselle’s interview with police; and never contacted a number of witnesses. As for those claims, Heilbrunn says he wasn’t the lead attorney on the case and that those types of decisions would have been up to Miller, who died in 2007. “If Mr. Miller didn’t do something, that’s on him,” Heilbrunn says. “I didn’t accept a retainer or anything from the client; in terms of everything but the trial itself, the decisions were Mr. Miller’s.”
Ratliff also learned that Heilbrunn, who did end up handling the bulk of the responsibilities at Giselle’s trial, had been temporarily suspended from practicing law seven years before he represented Giselle. According to a report from the Colorado Supreme Court’s Grievance Committee, Heilbrunn had exhibited a “consistent pattern of professional misconduct” in at least 17 separate instances spanning two years. The report said Heilbrunn would take on clients and then fail to work their cases or return their phone calls; he’d eventually “abandon the client and the case, causing actual or potential damage.” The report indicated that much of the misconduct stemmed from Heilbrunn having “suffered from severe and chronic depression leading to drug and alcohol abuse.”
According to the report, Heilbrunn had made an effort to “rectify the consequences of his misconduct” and also voluntarily agreed to remain on depression medication and submit semiannual psychotherapy reports to the grievance committee. Lastly, Heilbrunn agreed that when he was reinstated he would only practice law under the supervision of another attorney.
A few days after that morning staff meeting, Ratliff filled in one of the investigative gaps she felt Heilbrunn and Miller had missed. She tucked her two children into bed, drove north to the site of the old dance club in Thornton, and retraced Giselle’s route on the highway. Witness statements and police evidence indicated that about 30 to 40 minutes separated the two shootings, which both occurred near the interchange of I-25 and I-76. In his statement to police, Giselle said in between the shootings Guero told him to go to a girl’s house near the intersection of 26th Avenue and Sheridan Boulevard. It took Ratliff approximately 25 minutes to drive their route, one way.
Ratliff connected the dots in her mind. She wasn’t sure where Giselle and Guero had gone that night, but she was pretty convinced it wasn’t a house near 26th and Sheridan. Ratliff’s legal team also interviewed one of the girls Giselle and Guero had reportedly visited; according to Ratliff, the woman said she did not see Guero that evening. Ratliff wasn’t sure why Giselle had told those things to police, but at the very least, she says, she would have brought up the question of timing at trial. At least one juror said what happened in between the shootings weighed heavily in the decision to convict Giselle.
All of this new information, Ratliff says, would make for a claim of ineffective assistance of counsel, and she says she’s considering that option. Ratliff is also waiting on the U.S. Supreme Court to decide whether the Miller decision is retroactive. “I just want him to go home,” Ratliff says. “And I think he should go home. There are a lot of people—more than on an average case, and not just the defense—who say enough is enough.”
When I contacted many of the lawyers and investigators who were involved with Giselle’s case in the late ’90s, every one of them remembered it, and two of the people who were involved in putting Giselle in prison told me they didn’t think he should be there.
The first is former Deputy District Attorney David Juarez, one of the two lawyers who prosecuted Giselle. He told me that he had resigned his position with the Adams County District Attorney Office a few months after Giselle’s trial in part because of how that case was handled. In particular, Juarez referred to the negotiations of a plea agreement.
Digital records didn’t exist in 1997; everything was filed on paper by hand and then later transferred to microfilm. According to the Adams County DA’s office, there is no official record of the plea deal in the case file; that record either never existed or was lost. Juarez recalls that the deal was an offer for Giselle to plead guilty to second-degree murder, which would have been accompanied by a sentencing range of 12 to 48 years.
Juarez believed the deal was too punitive for someone whose family cooperated with police and helped track down the actual shooter. He said they might have offered the same agreement to a complicitor who didn’t have either of those things to his credit. “It didn’t seem fair,” Juarez says. “I did not feel great about giving the family nothing for their help and cooperation.” Juarez believed they should have offered a class-three felony, which he says carried a prison range of 10 to 32 years when a deadly weapon was involved. Inmates who earn credit for good behavior are often released in two-thirds the time of their sentences.
The former DA, Bob Grant, who is retired, also remembers offering Giselle second-degree murder. Grant said that, given the evidence, he believes the offer was “appropriate and generous.” I asked Grant whether it was fair that Giselle was serving the same sentence as the man who actually killed Rumaldo Castillo-Hernandez. Grant again pointed to what he thought was a fair plea agreement and said he was disappointed the defense had not taken it. “We tried to make it as fair as we could,” Grant told me. “What was fair was he was given an opportunity to plead to a lesser charge. That’s a decision he and his lawyers made. The question of fairness is for them to answer now. You don’t roll the dice and get the dice back again.”
When I contacted Heilbrunn to talk about the case, he remembered Giselle’s name right away. He also recalled there being an offer for a plea deal. Heilbrunn didn’t remember whether it was for second-degree murder but did say the deal was for a specific number: 30 years. One of the first things Heilbrunn told me was that he regrets not having pushed Giselle harder to take the deal. “It’s hard to tell a juvenile, ‘You have to accept 30 years,’?” Heilbrunn says, “so we went to trial.”
Heilbrunn said he thought they would prevail because Giselle wasn’t the shooter. He also said he and Miller believed they had filed a strong motion to suppress Giselle’s statement to police, but the judge ruled against them. Ultimately, Heilbrunn said, that statement, in which Giselle described the time between the two shootings, was what hurt him the most. “We might have prevailed if the two shootings took place immediately one after the other because the driver couldn’t do anything about it,” Heilbrunn says.
The second person involved in sending Giselle to prison who told me he doesn’t think Giselle should be there anymore is Mike Riebau, the special agent who helped arrange the undercover bust in which Giselle was arrested. Riebau told me he often thinks about how Giselle got wrapped up in all this and was so severely punished. “I’m not an advocate, I want to make that perfectly clear,” Riebau says. “I’m the guy who put him in jail. I’m not getting out my handkerchief and crying over this kid. But I did feel bad when he got hammered.” The father of two sons and two daughters, Riebau says Giselle’s case reminded him of one of his boys, who was hanging out with the wrong crowd when he was about 17. Giselle’s case made Riebau think back to that time in his son’s life. “I’m thinking to myself, Man, that could happen to any kid,” he says.
Riebau told me that when he retired, he considered writing a letter to the governor on Giselle’s behalf, something that explained what had happened and expressed how he felt Giselle didn’t deserve to spend the rest of his life in prison. But as so often happens, life got in the way, and Riebau never got around to penning the letter. He told me that if he had the chance today at a resentencing hearing, he would testify on Giselle’s behalf: “What I’m saying is, I don’t think justice was served by this kid getting the same sentence as the shooter.”
Before I went to visit Giselle at the Limon Correctional Facility, Ratliff told me a few things about him. One was that he had taught himself to speak English in prison. Another was that he’d become a talented painter. Giselle drew pictures as a kid, but within the confines of Limon, his artistic skills flourished. According to a Department of Corrections Progress Assessment Summary, Giselle struggled during his early years in prison, accumulating multiple code violations. In 2010, however, he began a record of good behavior, and in 2011 he was admitted to Limon’s Incentive Program. Inmates in the program are “held to a higher standard and are afforded the opportunity to earn extra privileges.” For Giselle, that meant access to art supplies: canvases, paint, and brushes. Painting became a way for Giselle to express himself, to experience a sense of freedom that he cannot physically access.
The day we spoke in the Limon visiting room, Giselle seemed thoughtful and at ease given his circumstances. He spoke about energy—good and bad—and how he feels it swirling around the prison. He spoke about fate and how it is almost as if being locked up has allowed him to become the person he is now. He told me he’s proud of the man he’s become and that even though he’s serving a life sentence, he is at peace. “I think I came here to be me,” Giselle told me. “In the streets I would have never been a painter.”
Ratliff updates Giselle regularly on his case, but he doesn’t focus on that. Instead, he thinks about his artwork. This past summer, Ratliff arranged for some of Giselle’s work to be shown at a gallery in the Santa Fe art district. His work generated almost $2,500 in sales, and Giselle donated the money to Children’s Hospital Colorado. Recently, he was asked to paint a large mural on the barren walls of the prison’s educational building. The mural spans the length of an entire hallway. Giselle painted the outside world: images of stars and the galaxy, snow-covered mountains and skiers, and deep-sea divers and marine life.
Eighteen years after the fact, Giselle says he doesn’t remember many of the details of that night. Ratliff speculates they are either gone completely or too painful to recall. She once asked Giselle to review the transcript of his interview with police; Giselle told her he couldn’t bear to read the words—his words—that in many ways led to his lifelong imprisonment. “They only believed the parts that sent me to life in prison,” Giselle says. I asked Giselle whether he still speaks to his brother, Raul, the sibling he most looked up to and who involved him in the bust to arrest Guero. (Raul declined to be interviewed for this story.) Giselle said he doesn’t talk to his brother and no longer respects him. But he says he would take a bullet for Raul. “I would still give my life for him, but not because of him,” Giselle says, “but because of what I inherited from my mother, my blood.”
If Giselle were ever to leave prison, he says he would go back to Mexico. The home Giselle grew up in still stands in Rancho Ruices, and his sister Kelly goes by every few weeks and cleans up just in case Giselle is one day able to return. Giselle thinks of painting in the dry fields behind his house, the very place he was reminded of the morning of the shootings, up at the buffalo preserve. “I would like to take my paints and paint,” he says. “I want to start a life over.”
Recently, Giselle finished a new piece called “Sacrifice.” Giselle’s feelings and emotions are embedded in each of his paintings, but this one is particularly meaningful. A few months earlier, Giselle received a letter from Ratliff with important news: She and her team had contacted the widow of Rumaldo Castillo-Hernandez, the man Guero shot and killed. In her letter, Ratliff explained that this woman, who has since remarried, had agreed to meet with them. During the meeting, Ratliff said, Castillo-Hernandez’s widow expressed no resentment toward Giselle; she said that she believes Giselle’s childhood was taken from him and she hopes he is given a second chance—she said, given the opportunity, she would “not stand in his way.”
Upon learning that this woman was even willing to meet with Ratliff and her team, Giselle turned to his paintbrush. He closed his eyes and painted the picture he saw in his mind. The colorful painting’s dominant image is of an eye; a teardrop drips from the eye and forms the outline of a person, who is positioned in a way that resembles Christ on the cross. In the bottom left quadrant of the painting there is a small man rendered in black ink, and a butterfly drifts into the open space above the man’s head. “I painted it with a good feeling,” Giselle says. “It’s a healing painting; I want to help her to heal if I can.” Ratliff later presented the painting to Castillo-Hernandez’s widow, and she accepted it; the painting is in her home.
Giselle has always felt a connection to nature. Many of his paintings contain animals, and he’s known around prison as an animal lover. That day at Limon, Giselle told me a story about a butterfly, much like the one in “Sacrifice.” He said he’d recently been out in the prison yard with a few friends. They were all seated on a bench talking when one of the guys noticed a large butterfly in the distance. The man excitedly pointed out the creature to Giselle, knowing he’d like to see it. Giselle responded by holding his hand up in the air. The butterfly began to travel toward Giselle’s palm. It came so close, it seemed as if it might land on Giselle’s hand. Just before it did, Giselle pulled his arm away, and the butterfly flapped its wings and glided into the boundless space beyond the prison walls.
—Photography by Morgan Rachel Levy