3.2 Murder and Mitigation

3.1 Christmas Eve

Book Three / 2

By statute in the state of Washington a person may be charged with aggravated murder if he’s been charged with first degree murder and sufficient evidence of an aggravating circumstance exists.  Aggravating circumstances include the murder of more than one victim if the murders were part of a common scheme or plan.  They also include murder to conceal the commission of a crime, or the identity of the person committing the crime.

Kristin Anders and John Mackey had each been charged by the State with six counts of aggravated first degree murder for the shootings of the Anders family.  Each count alleged one or both of those two aggravating circumstances.  At trial the prosecutor would be required to prove the aggravating circumstances to a jury beyond a reasonable doubt.  This fact alone would make both the trial and pretrial management much more complex than any other criminal prosecution.

At the moment when the judge and I faced the question of pre-assignment, however, our greater concern was the possibility of the death penalty in these cases.  State laws strictly control the sentences a prosecutor may seek following the court’s arraignment of a defendant on a charge of aggravated murder.  The only options were life in prison without possibility of parole, or a sentence of death.

The choice between those two sentences would be for a jury to make, at a trial that was still years away.  But a jury would only face that choice if the prosecutor first decided to make the death penalty available.  The decision was his alone.  If he decided to pursue death then the nature of the proceedings — and of the defendants’ rights throughout — would be transformed profoundly.  We would cross the legal threshold into a capital case, and the most significant and difficult of all criminal prosecutions would begin.


Of the death penalty the United States Supreme Court has written:

When the law punishes by death, it risks its own sudden descent into brutality, transgressing the constitutional commitment to decency and restraint.*

In an effort to avoid that descent, and in recognition of the unique category of punishment in which the death penalty exists alone, the nation’s appellate courts have fashioned a number of requirements that govern judges and attorneys in the prosecution of capital cases.  These requirements — super due process as some have called them — were developed to ensure certainty both of a defendant’s guilt and of his death-worthiness.  Once paid, as the courts have repeatedly observed, the penalty of death is final and irreversible.  No court of appeals can restore to life the convicted dead.

Yet despite the irreversible nature of death, the U.S. Supreme Court does not consider it to be among the country’s cruel and unusual punishments within the meaning of the Eighth Amendment.  Consequently, the death penalty remains a viable punishment in states that have elected to maintain the option.  Each of those states, however, must proceed with the goals of absolute fairness and consistency of process.  When a government, acting under its authority to protect society and punish its transgressors, decides to pursue the execution of an individual through the jurisdiction of its courts, it must exercise its discretion to do so in a manner that fosters public trust in the fairness and reliability of the proceedings.  It must avoid any descent into the brutality that invades a less vigilant watch.

Where there is doubt in the administration of the death penalty, courts have instructed, it must be resolved in a manner that best ensures accuracy, accountability, and a meaningful preservation of the defendant’s rights.  This is so even where the public or the defendant himself fails to understand or agree with the laws’ strict requirements upon court and counsel.  To paraphrase the Roman orator Cicero, in the prosecution through our courts of death penalty cases, the Constitution requires that the proceedings be — rather than merely appear — both fair and just.

One method for ensuring a more fair procedure in capital cases is the trial court’s use of a separate penalty hearing following a jury’s determination of guilt; a hearing where the defense may make its case for mitigation.  The Constitution, the Supreme Court has ruled, requires a sentencing body — whether a judge or a jury — to hear evidence on “the possibility of compassionate or mitigating factors stemming from the diverse frailties of humankind.”**  In a separate hearing, the Court reasoned, the convicted defendant may present those factors to a jury to show that he doesn’t deserve to die.  He can focus the jurors’ attention more clearly on his case for mercy once they have already decided his guilt.


The term ‘mitigation evidence’ describes the information presented at the penalty phase of a prosecution.  Mitigation evidence may illustrate specific circumstances of the offense, such as a defendant not being the principle actor, or having tried to alleviate the victim’s suffering.  Alternatively, it might emphasize the defendant’s personal history, such as a background of mental disability or severe childhood abuse.  Evidence of the former, the courts have ruled, or a history of the latter, may be sufficient to support a sentence of life in prison without parole rather than death, even in the most brutal of cases.

Predictably, perhaps, the most brutal of the cases decided by the U.S. Supreme Court present defendants whose abuse upon them as children would have outraged a caring community had it been visible to that community years earlier.  In their death penalty decisions the courts have observed that mitigation evidence is before the sentencing body appropriately because we understand as a society that a person may be considered less than fully culpable for a crime — in a moral sense — as a result of events that harmed him early in his life, when he had no control over the social environment that formed him.

Inherent in this Eighth Amendment analysis of mitigation is the recognition of society’s initial obligation to protect the abused child — a shared obligation, the courts imply, that is too often honored in the breach.  When the abused and unprotected child develops into a savage, murderous adult, the logic continues, any connection between severe childhood abuse and adult criminal conduct implicates the failure of society to intervene and alter the course of the injured individual’s development.

The law attempts to address that connection, to acknowledge society’s shared culpability rooted in its own failure to assist the abused child.  The law requires the attorneys, later representing that child as an adult defendant in a capital case, to investigate and present information that might help a jury understand their client’s character and behavior.  Then, when the jurors deliberate on whether the defendant is deserving of death, they must consider all available evidence that demonstrates a diminished moral culpability for the crime.  If they find sufficient mitigating circumstances, either in his life or the crimes he committed, they may sentence him to life in prison rather than death.

In this way the final decision reflects a more ethical awareness of those “diverse human frailties” — the defendant’s frailties, but also our own as a society.  Factored into a jury’s deliberation on death will be the possibility that we were all in some way involved in allowing the abused child to be transformed into the killer.  Rather than compound culpability further by requiring the death of yet another individual — that is, the defendant himself — the jury may impose life in prison as an alternative penalty, one that is sufficient to punish and disrupt the cycle of violence, while still acknowledging the full circle of social responsibility.


Prosecution of capital murder charges against a single defendant is lengthy and complicated.  Prosecution of capital murder charges against two codefendants, with an overlay of domestic disturbance and persistent media attention, very quickly becomes more than doubly difficult.  The ultimate goal is to ensure that the trial for each codefendant will be both fiscally efficient and judicially fair.  Selection of a trial court judge as early as possible provides the parties with the best chance at obtaining both.  It also increases the possibility of the judge’s consistent attention on the difficult issues that the State and the defense will present.

It was January when our court accepted pre-assignment of the Anders and Mackey cases, and I began preparations for an experience I could not adequately imagine.  Upon assignment to our court the case was only one week out from arraignment and we were still unsure whether the defendants would be prosecuted under the death penalty statute.

Initially the prosecuting attorney’s office had thirty days from arraignment in which to file notice that it would be seeking the death penalty.  The state’s death penalty statute, however, allowed either the prosecuting attorney or the defense to move the court for an extension upon a showing of good cause.  We knew that both sides had strong reasons to do so.

The county’s prosecuting attorney had been elected only two months earlier, following the death of a popular incumbent who had held the position for twenty-nine years.  Anders and Mackey were the first defendants to confront this new prosecutor’s authority to decide whether an accused would face the possibility of death.  Although his decision had to follow statutory requirements, just exactly what those requirements were would later strain everyone’s capacity to interpret legislative intent.  At that early moment, however, one could imagine him approaching his first potential capital case with at least a slit eye on political and legacy factors.

More importantly, just as the law would later require a jury to hear mitigating circumstances when deciding whether to impose the death penalty, it also required the prosecutor to consider that information now, before deciding whether or not to make the penalty available.  He would have to consider any information that mitigated in favor of sparing the two defendants’ lives before deciding whether to pursue their deaths.  In this way, it was thought, the law protected defendants in potential capital cases from being treated with a “one size fits all” analysis of the appropriate punishment.  The requirement was also intended to minimize the potential for a costly prosecution of any defendant whose mitigating circumstances would likely convince a jury to spare his life.

As fair as this additional obligation upon the prosecutor might be, thirty days was a very short period of time in which to obtain and evaluate mitigation evidence on two defendants each charged with six counts of aggravated murder.  Whichever way his decision went, a prosecutor might not want to be, or appear to be, too hastily committed.

Defense attorneys also had good reasons to seek a delay.  Ethical obligations and case law on a defendant’s Sixth Amendment right to the effective assistance of counsel required defense attorneys in death penalty cases to investigate rigorously all avenues of potential mitigation.  This obligation begins at the moment of a defendant’s arraignment on charges that could lead to a sentence of death.

Consequently, the newly appointed attorneys for the two defendants in our court would have to begin mitigation research immediately in an attempt to persuade the prosecutor at the outset not to pursue the death penalty.  On this basis alone they might convince a cautious judge to allow more time for research into their clients’ lives and the circumstances of their alleged offense.


As I read the materials in the case file late one afternoon, preparing for Anders’ and Mackey’s first appearances in our court the next day, I thought of the admonition against premature decisions that the judge gave to jurors in every trial.  Given the details of the murders that the couple had confessed to the investigators, I was having a hard time imagining that any mitigating circumstances would be found in their commission of the actual crimes.

Given those same details, however, I had no trouble imagining that serious mental health issues would be evident in even a surface scratch of their two lives.  Almost certainly the research of a mitigation specialist would unveil troubled families.  The horrors of their crimes as adults might be matched by the tragedies of their childhood.

3.3 The Codefendants

*Kennedy v. Louisiana, 128 S. Ct. 2641, 2650 (2008).

**Woodson v. North Carolina, 428 U.S. 280, 304 (1976).