In the years between 1976 and 1997, the process in Colorado would undergo a number of permutations. One that was constant throughout was the two-step process of the jurors determining the existence of aggravating or mitigating factors. As with most other death penalty states, the penalty phase was conducted much like a trial. The prosecution would present its evidence to prove “beyond a reasonable doubt” that at least one of more than a dozen the legally prescribed aggravating factors existed. The defense attorneys would then present their evidence of mitigating factors. After the defense rested its case, both sides would present closing arguments. These were often occasions of high drama, as attorneys implored, pleaded, and demanded that the jury see the wisdom of their views. Finally, because the state had the burden of proving its case, the prosecution would get one last rebuttal before the life-or-death decision was turned over to the jury.
Although not always the case, Colorado eventually settled on third step of “weighing” of aggravators against mitigators. Only if the aggravators outweighed the mitigators was the accused eligible for the death sentence. Then Colorado added a fourth step in which if the aggravators were determined to outweigh the mitigators, the jurors would be asked to vote on whether the defendant “deserved” to die. This highly subjective question would become problematic, adding greatly to the burden jurors already faced.
“Death is different” is a common saying in the judicial system. In one sense, the comment reflects the huge workload engendered by death-penalty cases, including a mountain of legal paperwork created before, during, and after the trial and subsequent hearing. And if the defendant is sentenced to die, several more mountains are created during appeals at the district, state, and federal levels. But there’s also an emotional load, not just for friends and families of the victims, but also for prosecutors and defense attorneys who try the cases, as well as the judges who preside over them.
The emotional load was particularly heavy for jury members. To hear a case carrying a potential death sentence, jurors had to be “death qualified,” which meant that regardless of their personal feelings about the death penalty, they had agreed that they could, and would, participate in the step-by-step process that might lead to a death sentence. Defense lawyers had long complained that such qualifying tilted the playing field toward the prosecution. But without it, a juror might be seated who was adamantly opposed to the death penalty, making the entire penalty phase an exercise in futility before it even began. For prospective jurors to say they didn’t approve of capital punishment did not always get them excused from duty, however; unless they demonstrated to the judge’s satisfaction that they would never impose the death penalty no matter what the law said, they were still eligible. Now they had to decide who “deserved” death and who did not.
In November 1993, an opinion poll showed that 80 percent of Colorado’s voters endorsed capital punishment. In the almost twenty years since Colorado had voted to reinstate the death penalty, there had been more than 3,500 murders in the state. Although fifteen killers had been sentenced to death, none had been executed in the state; one had died while waiting on death row, nine had had their convictions or sentences overturned on appeal, one had had his sentence commuted to life in prison, and one had been executed for a murder in Texas. Of the thirty-eight states in which the death penalty was legal, only four—New Hampshire, New Mexico, Wyoming and South Dakota, all states with much smaller populations—had fewer killers on death row.
But those same Coloradans who favored the death penalty philosophically often balked when they were sitting in the jury deliberation room. It took a particularly heinous crime to move all twelve jurors through that fourth step.
After a series of death penalty trials in which a single juror balked at the decision on a killer “deserving” death, state prosecutors pushed the Legislature to make one more addition to the state’s death penalty statutes. It was intended to take the decision away from jurors, and instead created three-judge “death penalty panels” that would consist of the trial judge and two other judges selected at random. They would hear the lawyers’ arguments, do the weighing and then determine the sentence.
Passed in the 1995 legislative session, the new system was to go into effect for murders committed after July 1, 1996. But as of the Spring 1997, as the Luiszers met with the prosecution team, no panels had yet heard a case.
The Luiszers were cautioned that it would be a long time before such a “death penalty panel” might be called for one of their daughter’s killers. They’d been told that the defense would throw everything they could against the wall and see what stuck. And the attorneys would spare no expense doing it.
While some states had a set amount that could be spent on defending death-penalty cases—such as New Mexico where the number was $50,000—there were no restraints, beyond its multimillion-dollar, taxpayer-funded budget, on the Colorado Public Defenders’ Office.
They regularly spent hundreds of thousands of dollars, and as much as a million, bringing in all sorts of experts. Their unofficial motto seemed to be that if the state was going to kill their clients, the taxpayers were going to “pay for it,” literally and figuratively.
In some ways, Colorado prosecutors brought it upon themselves because compared to neighboring states, they rarely sought the death penalty. That meant the public defenders and Alternate Defense Counsel were able to concentrate their resources (manpower and finances) on a comparatively few number of cases.
Already it seemed to the Luiszers that Jacine was just something for the lawyers, especially the defense lawyers, to argue over. It was all about the defendants’ rights now. Their lawyers wanted to move the trial because the citizens of Colorado Springs were angry that a young woman had been viciously raped and murdered by a couple of men acting out a fantasy. The defendants wanted the charges dismissed because their attorneys didn’t like the way the grand jury did its business.
Peggy had immediately developed a strong dislike for Brake and Wilson, who had done most of the arguing. Some of her anger at them was because she believed they exhibited a lack of professionalism in court. The three prosecutors dressed like it was an important occasion. They didn’t roll their eyes or scoff or whine. But she thought that Wilson looked like a rumpled bowling pin, who slept in his suit, and that Brake was a mousy, unkempt harpy. She thought they both behaved as if they thought they were acting in a play. Neither seemed to her to really care why they were there: Jacine. They seemed to her only interested in what tricks they could pull to help her daughter’s killers.
CHAPTER SEVENTEEN
“We grieve our loss …”
May 23, 1997
Colorado Springs
The day after the hearing in which the District Attorney filed the papers seeking the death penalty, the Luiszers drove back down to Colorado Springs and the campus of the University of Colorado. There Peggy Luiszer took her place in line for the commencement exercises. Only it wasn’t really her place. It was Jacine’s, as were the cap and gown she wore as she filed into the auditorium with the graduating students.
University officials had called earlier in the week and said they were going to award Jacine’s Bachelor of Arts degree posthumously. They asked if Peggy would accept on behalf of her daughter.
Peggy took her seat with the others and looked for her husband, Bob, in the crowd. She saw him sitting surrounded by other, happier, parents. He looked so alone. No one else from the family had wanted to attend the ceremony, and she felt bad for him. He’d been left out in the cold throughout much of the fallout from Jacine’s death.
Even the press had quickly learned that he was more reserved with his emotions, but they could get her to cry easily for their cameras and stories. They wanted her to cry. … It gave them something juicy to write and talk about, and made for better photographs. But so far today, she was keeping the tears pretty well in check as she talked to the soon-to-be graduates around her, and explained what she was doing there. They were kind
, sympathetic. One of the young men said he
knew Jacine and that she was a wonderful person. But it was also as though they were uncomfortable with her presence.
The outpouring of sympathy and support had not dried up with the memorial service at the church, nor was it limited to Littleton. On May 6, another memorial service had been conducted on the University of Colorado campus in Colorado Springs, with three hundred people in attendance.
Of her own volition, campus security officer Susan Szpyrka handed out 200 white carnations. “Jacine was innocent,” she explained to the Gazette. “Brides get to wear white at their wedding. She didn’t even get to do that.”
As with the previous service, most of those who spoke chose to remember how she was in life rather than the manner of her death. One of her journalism professors, Don Morley, brought smiles to the crowd when he recalled one day when Jacine was feeling poorly and told him she would have to miss class. She made him feel her head to prove she had a fever. “She made us laugh,” he said. “Her loss is all of ours.”
However, the service wasn’t all about memories of Jacine. Sociology professor Jay Coakley spoke out against what he saw as a growing tolerance of violence against women perpetrated in music and films. Salmon and Woldt, he said, are “part of a culture where men have privilege and can talk about dominating other people without being sanctioned.”
University officials announced the formation of a scholarship fund in Jacine’s memory. Another scholarship fund had been established at Littleton High School to pay the $100 school athletic participation fee, as well as pay for sports equipment, for underprivileged girls.
The scholarships were all very well intentioned, and Peggy knew that people were hoping for the old adage “some good would come out of all of this.” But she couldn’t help but feel that such platitudes were a bunch of crap. They didn’t make her feel better, and nothing good was going to come out of her daughter’s murder. The scholarships were nice, but she would much rather have had Jacine.
The Luiszers had not said much to the media recently. They felt the majority were just rude and insensitive. Without so much as calling, they’d show up at the door and make demands, no matter how they tried to couch those demands. And they wanted them met right away, with the clear implication that Jacine’s murder was important now, but tomorrow it might not be so important. Something new, perhaps someone else’s tragedy, would knock Jacine off the front page and out of the newscasts.
They’d asked if they could bring their cameras and crews into the church to record the memorial service. The Luiszers had replied, “Absolutely not.” So they’d showed up outside and filmed everyone filing in, the friends hugging and in tears.
After the first memorial service, the Luiszers spoke briefly to a reporter for the Littleton Independent, a small weekly, and the anger they felt bubbled to the surface.
“I hope that something will be addressed with the violence in the Colorado Springs area,” Bob Luiszer said. “I don’t know how people can do this. They’re sick.”
“Animals don’t do this to animals,” Peggy said. “They are lower than … I don’t know what.” But for the most part, they stayed away from the press.
At least the people at the graduation ceremony cared. During her commencement address, University Chancellor Lunda Bunnell Shade spoke about Jacine. “People who knew her tell me she was a really special person dedicated to making a difference,” she said. “We join her family in grieving and their loss and we grieve our loss as a university.”
Peggy rose from her seat to follow the graduates onto the stage, her eyes damp but still in control. But when Shade called out, “Jacine Gielinski,” the crowd began to clap. First one, then another, until nearly four thousand people were on their feet applauding.
By the time she reached out for the diploma, Peggy was weeping openly, praying that she wouldn’t trip and fall, unable to see clearly in front of her because of the tears. She wished more than anything that she was sitting with Bob, watching her daughter graduate.
PART III
TRIALS and TEARS
‘‘What gets into you all? We study the problem. We’ve been studying it for damn well near a century, yes, but we get no further with our studies. You’ve got a good home here, good loving parents; you’ve got not too bad of a brain. Is it some devil that crawls inside of you?”
—A Clockwork Orange
CHAPTER EIGHTEEN
“Upsetting and outrageous.”
January 1999
Two years. Two long, miserable years, the Luiszers waited for the first of their daughter’s murderers to go to trial. Two years of driving back and forth to Colorado Springs until Interstate 25 become a highway to hell.
Two years of listening to lawyers argue about the defendants’ rights and legal technicalities. And that a young woman had been raped and murdered with unimaginable brutality hardly seemed to matter.
When District Attorney Jeanne Smith first asked whether they wanted her office to pursue the death penalty, she told them that it would be a long process. It might take a year or two before the trials and penalty phases would be over, she said.
Yet here it was, February 1999, and the trial for Lucas Salmon was about to begin. If he was convicted there’d be a lengthy period of time—at least sixty days, and likely more—before the death-penalty hearing. Then the whole process would start over with George Woldt, and the way the defense attorneys had managed to delay the proceedings so far, God only knew how much more time would pass.
The prosecutors had warned the Luiszers that the defense attorneys would do more than simply attempt to win their battles in the courtroom. They would try to wear the Luiszers down—hoping that by dragging things out, the victim’s family would ask the prosecution to stop pursuing the death penalty. The pressure started almost immediately.
On June 20, 1997, the defense attorneys representing Salmon and Woldt asked that their clients be tried separately. They’d even been seated at different tables during the hearing, as though they had nothing to do with one another.
The district attorney’s office anticipated the request. It was obvious that the defense strategy for each side would be to point the finger at the other defendant as the instigator of the crimes and hope that the jury would agree that their client was less guilty than his accomplice. However, the prosecutors did not object to the motion; they knew they would most likely lose, and besides, it would make it easier for them to use the conflicts in the confessions of each defendant against the other.
Judge Parrish granted the defense motion. However, to expedite the proceedings, he decided that the two defendants would attend the same pretrial hearings because the motions, as well as the arguments for and against each, would be similar.
The defense attorneys again demanded that all communications—written and oral— about the case between the public and any agencies, including the district attorney’s office, the judge, all law enforcement, and even the city’s newspaper, the Gazette, be turned over to them.
The defense had a right to such documents, defense attorney Heher said, because “it acts as a barometer of public sentiment.” Their concern was that the district attorney was seeking the death penalty due to pressure from the citizens of Colorado Springs. Citizens, he noted, had sent threatening letters to Salmon and Woldt in jail, which had also been published in the newspaper.
Parrish said he would take the matter under consideration. But, he added, any threats made against the defendants should be relayed to the defense. He also promised not to read any letters about the case sent to him by the public.
The defense attorneys said that their clients were still not prepared for the arraignment in which they would have to enter pleas. The lawyers said they needed more time to view the evidence and read the grand-jury transcripts. Until the pleas were entered, the defendants’ constitutional right to a speedy trial would not begin, so Parrish asked the two killers if that was agreeable with them.
> Salmon nodded and quietly said, “Yes.” Woldt, who acted as if he was enjoying the fuss, grinned and said, “No problem.”
The defense lawyers still managed to postpone the arraignments until December 1997 when Salmon and Woldt both entered pleas of “not guilty.” However, one of the attorneys for Woldt, Doug Wilson, said he reserved the right to change that plea to “not guilty by reason of insanity” depending on the outcome of testing by a battery of psychologists and psychiatrists. Parrish scheduled the trials for June 1998.
It was clear early on that the trials were going to be a battle of the expert witnesses—in these cases, psychologists. Eventually, both defense teams had decided against trying for an insanity finding. The legal definition of insanity is whether the defendants knew the difference between right and wrong at the time of the offense, and whether they knew that their actions were likely to lead to the victim’s death. It was clear from their confessions—they both said Jacine had to die to keep her from identifying them—as well as their attempts to destroy evidence of the rapes with mud that they knew what they were doing was wrong. Their confessions made it clear that they had also intended to kill Jacine, and indeed had spent quite a bit of time discussing how to do it.
However, the attorneys could still attempt to present a defense at the trials that would argue their client was under the psychological influence of the other, or had some other mental deficiency that would somehow mitigate the degree of guilt. That meant shopping around for psychologists who could come up with some sort of explanation for why the defendants were not responsible for their actions the night they murdered Jacine.
A CLOCKWORK MURDER: The Night A Twisted Fantasy Became A Demented Reality Page 14