"The horror of Jacine Gielinski's death is virtually incomprehensible, and it is the judgment of the panel that this aggravating factor alone outweighs the mitigation found to be present in this case," they determined. That meant that Salmon fell "within the legislatively defined category of persons eligible for the death penalty." There was only one more step, the fourth step, during which the judges had to decide whether, all things considered, Salmon deserved to die. But here they could not agree.
Judge Frasher's was the dissenting vote that saved Lucas Salmon's life. At the start of the hearing, Cleaver had tried to have Frasher removed from the panel, arguing that the former public defender had a conflict of interest because he had worked with one of Woldt's lawyers, Doug Wilson. But now he was the man who saved her client.
Frasher noted that the "presumptive sentence" -- unless proved otherwise -- was a life sentence. "I am unaware of any modern historical precedent in the State of Colorado for the execution of an individual with the characteristics of Lucas Salmon," he said. "The imposition of the death penalty on Lucas Salmon in this case would substantially lower the threshold for the imposition of the sentence of death in the state.
"It is human instinct to want to strike out at the perpetrator -- to strike out at Lucas Salmon. To smite him dead as a symbolic act of retribution and vengeance for Jacine Gielinski and her family. Additionally, there is an emotional temptation to feel that the imposition of a sentence less than death demeans the value of Jacine Gielinski's life and the profound tragedy of her death or trivializes the depth of the loss sustained by her family and friends...
"As tempting as it may be," he continued, "I am not permitted, nor should I be permitted, the luxury of seeking vengeance out of the righteous emotionality which understandably surrounds this case. It is my conclusion that I am not convinced beyond a reasonable doubt that the execution of Lucas Salmon is necessary and appropriate."
The proportionality review had swayed one judge -- and one judge was all the defense needed, as the Danny Martinez case had shown.
Judges Booth and Parrish disagreed with Frasher. Even if the crime was Woldt's idea, "Lucas Salmon willingly signed on and, in time, fully embraced the horror," Judge Booth said. "He never argued against it. Never suggested that they keep this in the realm of fantasy. Salmon's previous lifestyle was respectable, his service to others laudable, but his crimes were horrific.
"That nobody has been sentenced to death in the past twenty years in this state who has Salmon's characteristics is not surprising," Booth said. "Salmon is unique."
Arguing that Salmon didn't deserve the death penalty because he didn't fit the profile of other men on death row ignored all the aggravating factors, Judge Parrish said, "especially the horror of the crime itself in the calculus of the propriety of the death sentence in this case. The loss to the family and friends of Jacine Gielinski is enormous. Whatever action is taken by this panel, the death and manner of death of Ms. Gielinski will never be comprehensible.
"For this sentencer, the only adequate response beyond a reasonable doubt, in light of the circumstances of this case, is a measure of justice in fair and equivalent proportion to the actions of the defendant. He should be sentenced to death."
But then, as the presiding judge, Parrish also had to note that, "as this is not the unanimous conclusion of the panel, by operation of law, he is sentenced to life in prison without the possibility of parole."
"We'll live with the decision," Peggy Luiszer said matter-of-factly outside the courtroom. "Eventually justice will be done. I can't imagine being 23 years old and living to die in jail. He's not going to make fifty years in prison."
Others were less circumspect. El Paso DA Jeanne Smith lashed out against Judge Frasher's decision, saying it demeaned the value of Jacine's life and her family's loss. "Lucas Salmon has been given the gift of life, a gift he took from Jacine Gielinski, a gift he does not deserve," she said.
Back in 1995, Smith (who would later say that her words criticizing Frasher "were said but taken out of context") had supported the idea of a single judge, the trial judge, being responsible for death-penalty decisions. Now she suggested that Frasher, a former public defender, was simply opposed to the death penalty. "We do have judges who do not believe in the death penalty," she said. "There is an obligation under the law for any judge who believes he could not in good conscience follow the law in a case to recuse himself."