By Alan Prendergast
By Michael Roberts
By Michael Roberts
By Amber Taufen
By Patricia Calhoun
By William Breathes
By Michael Roberts
By Melanie Asmar
El Paso District Judge David Parrish presided over Salmon's trial and was subsequently joined on the death-penalty panel by El Paso District Judge Michael Heydt and Pueblo District Judge James Frasher. But in April, just as the Robert Riggan death-penalty hearing -- the first to give the sentencing decision to a panel of judges instead of a jury -- was getting under way, Heydt resigned from the bench rather than serve on the panel. He was eventually replaced by El Paso District Judge Peter Booth.
"I do not believe that a fair and just decision can be made by a panel of judges from a paper record," Heydt said in resigning. "I do not wish to participate in a death-penalty process unless I believe that it is one that I can live with, not only as a judge, but also as a human being."
But both Booth and Frasher accepted the challenge of reading the 3,000-page transcript of the trial, representing ten days of testimony from witnesses. As the hearing began that June, Young gave the prosecution's opening statement accompanied by six minutes of video projected onto a large screen that showed a battered, nude Jacine Gielinski lying on her stomach, face down in a pool of blood. Young said the prosecution intended to prove seven aggravators -- those legally defined circumstances of the crime that demonstrated why Salmon deserved the death penalty rather than life in prison -- necessary for the first step of the death-penalty process.
Robert Pepin, president of the Colorado Criminal Defense Bar, opened for the defense, saying his side would be calling witnesses to testify that Salmon was a nonviolent, caring individual until he fell under the sway of the much more evil George Woldt. Some of those witnesses would be psychologists who would attest that Salmon had a "dependent personality disorder" that made him so desperate to keep Woldt's friendship that he participated in the rape and murder. The testimony, as well as Salmon's age at the time of the murder, 21, and his general immaturity, would be offered as mitigators, he said. And then Pepin made a curious comment. Bad as the crime was, he said, Lucas Salmon did not "fit the profile" of the killers on death row; the defense would be calling a witness to demonstrate that, too.
After Pepin finished, prosecutor Zook called the El Paso County coroner to the stand to testify regarding Jacine's wounds. And then Zook surprised everyone by announcing that he was resting his case. The judges had what they needed; there was little more the prosecution could add.
As promised, the defense called its experts to testify about Salmon's psychological makeup. At Salmon's trial, defense attorney Lauren Cleaver had told the jury that her client's dependent-personality disorder made it impossible for him to "deliberate" the murder of Jacine; the jury had rejected that contention. But the defense still hoped that the judges would accept it as mitigator.
The defense also called friends of Salmon's, who described a different man from the one who had raped and killed Jacine. One of his former girlfriends noted that Salmon had respected the sexual boundaries she'd established and had kept his hands to himself far better than any boyfriend she'd had since.
Salmon's parents also took the stand. They loved their son, they told the panel, but did not ask that his life be spared. Whatever decision the judges reached, Robert Salmon said, he hoped it would bring some closure for Jacine's family and friends. "I guess I don't envy your decision," he told the judges. "I love my son. But I have to tell you that Jacine's family is my primary concern. I have to tell you that whatever's best for them is my desire."
And for every dollar he spent on his son's defense, Robert Salmon added, he was also contributing a dollar to a memorial fund established in Jacine's name.
Salmon's mother, Gail Keller, told the judges that her son was bright but had never lived up to his potential. "I never, never could have imagined this...that my son could be convicted of rape and murder and be facing the death penalty," she said. "I just ask that you come to this decision carefully and honestly. I'll be praying for you."
Then, over the prosecution's objections, Judge Parrish allowed the defense to call attorney Ingrid Defranco to the stand, to present a "proportionality review" that compared Salmon to the other men already on death row.
Until this point, judges serving on death-penalty panels had considered much the same evidence that juries had. And even their decisions had mirrored past jury decisions. For instance, although the option was on the books, no jury had ever sent a defendant to death row for a first-degree felony-murder conviction -- nor had the panels considering the fates of Robert Riggan and Jacques Richardson.
But now, at the fifth death-penalty trial to be heard by judges, the Salmon defense team was offering evidence that no Colorado death-penalty jury had ever been asked to contemplate. Before this, a proportionality review had been reserved for an appellate court trying to determine whether a defendant had been fairly sentenced. Gary Davis, through his attorneys, had asked the Colorado Supreme Court for a proportionality review -- a comparison of crimes and criminals -- to determine if his death sentence for the 1987 murder of Virginia May was appropriate. In that case, the court had ruled that a proportionality review was not constitutionally required and determined that there was "no defect" in the state law. In pretrial motions in other cases, defense attorneys had asked that such information be allowed in front of a jury, but trial courts had denied those motions as well.