Shades of Black

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Before the trial, defense attorney Cleaver had called Luiszer at home to try to talk her out of supporting the death penalty. They'd talked for nearly 45 minutes, discussing motherhood and other things they had in common. Luiszer had even asked Cleaver how she would feel if the roles were reversed; "probably the same as you," Cleaver had replied. Luiszer understood that the defense attorneys were trying to save a life, understood that they didn't believe in the death penalty.

But then, at Salmon's trial and hearing, Cleaver had fawned all over Salmon, even calling him a "sweet little bunny" in her closings. That had been sickening.

Luiszer also didn't understood the rationale behind the proportionality review. How could the defense compare one murderer to another? So what if Salmon was young? He was over eighteen, the legal age for executions. Besides, Jacine had been young, too. And so what if this was his first offense? It was a horrible one.

If Woldt deserved death, so did Salmon -- although Peggy Luiszer couldn't say that to the judges. But she could speak on behalf of her daughter.

Jacine was a good person, she told the panel, someone who'd always been willing to help others, whether it was teaching a child to kick a soccer ball or gathering clothes to give to homeless shelters. "After 22 years of being a mom, this is all I have left," she said of the box filled with her daughter's remains. "I'll never be a mom again; I'll never be called 'Mom.'"

Jacine's stepfather, Robert Luiszer, who'd helped raise Jacine since she was two years old, asked the judges to reach a fair decision. "He's going to have a right to have comfort from family and friends," he said, indicating Salmon. "Jacine didn't have that right, and she didn't have that chance. She was by herself, alone. I'm not looking for revenge; I'm looking for punishment that fits the crime."

Just before closing arguments, Salmon took the stand to make the traditional apology that defense lawyers usually urge upon their clients as part of their mitigation efforts. Salmon's was a little unusual: He didn't plead for leniency, and he said he wished he'd pleaded guilty from the beginning and not let his attorneys talk him into a trial.

"It seems pretty disingenuous to apologize now for something I could have stopped two years ago," he said quietly. If he could give his life to bring Jacine back, he added, he would, "but we all know that can't be done."

In her closing, Cleaver stressed that Woldt was the one who'd come up with the idea and that Salmon had been under duress, afraid of losing his friend. In his closing, Zook countered this by reading from Salmon's confession. "We both agreed it was something we would like to do," he read, then asked, "Does this sound like duress?"

On June 24, the three judges again gathered in the El Paso County courtroom to pass judgment. In their written opinion, the panel noted up front that their decision was not a comment on the guilt or innocence of Woldt, who had yet to be tried. There was no getting around mentioning the co-defendant, however, as "Salmon's involvement is inextricably linked to Woldt's alleged involvement."

The panel agreed that the prosecution had proved most of its aggravating factors, including that the murder had been "especially heinous, cruel and depraved," as defined for Gary Davis's death sentence, in that the "acts were done in a conscienceless or pitiless manner which was unnecessarily torturous to the victim."

The judges' decision continued: "While it borders on the absurd to speak of murders in terms of their being senseless, it is noted that the more common reasons people kill each other are not apparent in this case -- for example, greed or revenge. This murder was senseless to the degree that it was for the purpose of carrying out a twisted fantasy causing enormous and unquantifiable pain and damage to others for momentary gratification."

As mitigators, the judges accepted Salmon's age and lack of maturity. And while he had lived in a religious family, attended Bible study and a Christian college and so knew that what he was doing was wrong, they said, under Woldt's "considerable domination," his ability to conform his conduct to the requirement of the law was "significantly impaired." The judges noted that Salmon's life before the murder stood in "stark contrast" to what he did to Jacine Gielinski, and also allowed that he had cooperated with the police -- at least after he was caught. But when it came to the third step in the process, the judges said there was no doubt that the aggravators far outweighed the mitigators.

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Steve Jackson