Shades of Black

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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.

When Defranco took the stand to testify for Salmon's defense, she presented a chart comparing killers like Davis, who'd been executed in 1997, Frank Rodriguez, Robert Harlan, Nathan Dunlap and Francisco "Pancho" Martinez, the only man sent to death row by a panel, as well as the crimes they'd committed, to Lucas Salmon and the murder of Jacine Gielinski. Salmon was young, had not committed other crimes, and therefore did not "fit the profile" of other men on death row, Defranco concluded.

After the defense rested, Jacine's parents were allowed to speak -- although they were limited in the scope of their comments. According to Judge Parish's interpretation of the Colorado Victim's Rights Law, which allows victims or their families to address the court and the defendant, the family could not make recommendations as to what sentence they thought was fair.

Peggy Luiszer, Jacine's mother, was the first to testify; she walked to the front of the courtroom carrying a small box containing her only child's ashes. Before Jacine's death, when she'd learned about murderers like Gary Davis and Nathan Dunlap, heard about their crimes, she'd thought that they didn't deserve to live and that the death penalty was a fitting punishment. But she'd never given capital punishment much thought beyond that.

Then Jacine was murdered, and Luiszer had been forced to think about capital punishment. To be honest, she wasn't sure that life in prison was a better deal than the death penalty. But the law allowing executions was on the books, and if two men deserved to die, they were Lucas Salmon and George Woldt.

She'd expected the defense attorneys to fight hard. But she wasn't prepared for how they made her feel.

For Jacine's memorial service, her friends had made hundreds of small purple ribbons. Purple was Jacine's favorite color, her high school's color. The family had found a vendor to make metal replicas of the ribbons, about an inch wide, something that would say "Remember Jacine." But on the first day of the trial, the defense attorneys had demanded that the family and the prosecutors be prohibited from wearing those ribbons; Judge Parrish had let the family keep them but had banned the prosecution from wearing the ribbons. That had seemed unnecessarily hurtful.

The defense attorneys had also insisted that the prosecution not refer to Jacine by her first name; it was too personal. Instead, she was to be referred to as "Ms. Gielinski." And while the jury got to look at Salmon every day, they were allowed to see a photograph of Jacine only once, for two minutes during the prosecution's opening statement; the defense had argued that any more would unfairly prejudice the jurors.

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Steve Jackson