3.4 A Line in the Sand

Book Three / 4

Bastille Day, suggestive to some of liberation and rebellion against the arbitrary enforcement of authority, arrived on a Monday that year.  To the staff of our court it meant the last day before the judge boarded a flight to the east coast for his annual two-week summer leave.

It was also the afternoon when I had set for hearing a motion of Kristen Anders’ attorneys to withdraw, as well as Anders’ own motion to discharge them.  Upon reflecting further on Anders’ appearance in our court that day, the meaning of the French holiday became a bit more relevant.  Since February she had been working herself up to a confrontation.  Being forced at each consecutive appearance before the judge to hold back, to speak only through her attorneys, to let them represent her, she knew that at this hearing her complaints had to be addressed.  She would be ready to stage her own rebellion against what she imagined to be the arbitrary enforcement by her attorneys of their authority over her.

The prosecutor still had not decided whether to pursue the death penalty against Anders and Mackey, though he’d committed to considering the mitigation materials submitted by their attorneys.  In turn, their attorneys had been working hard to gather the material before their time ran out.  Anders, however, was now forbidding her attorneys from presenting the information to the prosecutor.

In the weeks between the last hearing in April and this one, the court had received numerous documents from the attorneys.  Among them was Anders’ attorneys’ brief in which they argued that their withdrawal was both permitted and required by the rules of professional conduct.  Their client, they explained, had forbidden them to present the mitigation evidence they were required to prepare for the prosecutor.  She was insisting on being a “death penalty volunteer,” and had instructed them not to engage with the prosecutors in any attempt to prevent the matter from converting to a capital case.

Anders had previously been found competent to stand trial after the judge had ordered an evaluation.  The court’s ruling of competence had freed her attorneys to move now for their removal from the case.  They argued in their motion that on the one hand they were obligated by law to honor Anders’ goals in their representation of her.  On the other hand, however, they could not represent any client who insisted on taking action they considered repugnant, or with which they had a fundamental disagreement.  Volunteering for state-assisted suicide — as Anders’ attorneys described her request for the death penalty — was a goal repugnant to their personal and professional ethics.  They could not in good conscience continue their representation.

After oral argument at the hearing that July afternoon the judge granted the attorneys’ motion to withdraw.  We would coordinate with the public defenders’ office to secure appointment of two new attorneys who met the state’s special qualifications for capital cases.

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It was nearly 5:00 by the time the judge finished announcing his rulings.  The only issue remaining for his decision that day concerned what to do with the nearly five-inch binder of mitigation materials still sitting on the desk in front of Anders’ attorneys — now effectively withdrawn from their representation of her interests in the matter.  They had earlier moved the court for leave to file the materials under seal to preserve the record of their representation.  They had concluded that this was their best option given Anders’ instructions to them not to deliver the binder to the prosecutor.

The prosecutor, on the other hand, noted that the deadline for his decision on the death penalty was looming.  He argued that we needed to hear on the record that very afternoon whether Anders was waiving her right to present the mitigation evidence to the prosecutor for his consideration in the decision.  He was running out of time, the prosecutor advised the judge, and he needed to know definitively whether his office would have the mitigation evidence available to review, or not.

At the prosecutor’s first mention of the mitigation materials Anders snapped her head up and instantly objected to the binder being turned over to the State.  Lively now, she had become emboldened by her success in securing the discharge of her prior attorneys.  Her cheeks reddened and her dark eyes flashed.  Her voice faltered at first, seeming almost startled by its own volume and vehemence.

I had heard Anders speak on several occasions, including her recorded conversations with television news reporters.  I’d become accustomed to hearing one of two distinct voices from her.  The first was a high-pitched, whiny but deferential voice of a little girl testing the waters of paternal authority.  The other was demanding, vengeful, and raging with frustration.

Many individuals have variations of these two voices.  What was most striking about Anders, however, was both her failure to speak in any voice that modulated between the two, and her shift on a dime from one to the other.  The voice she chose, it seemed, depended upon the stage of negotiations she was in with whomever she was addressing, and on how well the negotiations were going for her.  For reasons unknown to me but imaginable, Anders spoke each word in every conversation as though engaged in a struggle to get something, as though every communication was either an offer or a counter-offer.

Appearing angry and inflamed at the table that day, still sitting between her two former attorneys, Anders now insisted that they were lying about the mitigation materials.  Her voice raged in quick snippets of caustic accusation.

We were close to concluding the hearing, and everyone was anxious to be done.  The media were beginning to fidget, appearing more interested in packing up their equipment and getting their reports filed by the evening’s newscasts.  The judge, on the other hand, wanted primarily to maintain control of the courtroom for just a few more minutes, long enough to direct handling of the attorneys’ mitigation binder and then move Anders and Mackey out of the danger that hovered around Anders’ inability to control her own outbursts.

What to do with that binder, it turned out, was a new issue from the law’s perspective.  No case was available directly on point that would support any of the positions taken that day.  As the law presently stood, a death penalty defendant could possibly waive both the constitutional and statutory right to present mitigation evidence to the jury at the sentencing stage, once a verdict of guilty had been established.  The state’s supreme court, however, had not yet ruled on the issue of whether the defendant could waive her right to present that evidence at this stage of the proceedings, at the pretrial stage when a prosecutor had to consider whether she might deserve to die.  The law had simply not spoken on whether a defendant could refuse to provide information he would need to decide whether to spare her life or seek her death.

Despite a lack of clear authority on the issue, the deputy prosecutor had argued that afternoon that Anders could indeed waive that right.  She would need to do so on the record to show that her waiver was knowing, intelligent, and voluntary.  Further, to meet that standard she would have to demonstrate verbally that she was familiar with all of the contents of the mitigation packet in significant detail.

I glanced over my shoulder at the judge to get a quick read on his tolerance threshold.  Likely the last thing he wanted at that moment was to engage in a long colloquy with Anders in open court concerning the full contents of the mitigation materials.  In fact, ordinarily judges don’t become involved in issues involving mitigation evidence and its sufficiency at this stage.  Not only do defendants typically not oppose their attorneys’ efforts, but those efforts are considered part of the attorneys’ work product and their private negotiations.

In this case, however, the State was very conscious that it was facing a potential minefield.  The deadline for the prosecutor to make his decision on the death penalty was only weeks away, and he was obligated to consider mitigation evidence in advance.  Moreover, Anders’ attorneys were required to investigate that evidence for his consideration.  They had done so, and had collected all their material in a large binder.  They were now prepared to deliver the binder to the deputy prosecutor as their parting salvo.  The only obstacle in their way was Anders’ own insistence that the evidence not be released.  If the prosecutor decided to pursue the death penalty without seeing the mitigation evidence, however, his decision might not survive an appeal if Anders’ waiver of her right to have him consider it was not solid and a part of the record for review.

Additionally, with Anders’ attorneys withdrawing at the conclusion of this hearing, Anders would be effectively without representation for much of the interim period between this hearing and the prosecutor’s decision.  The prosecutor did not need to suggest this concern aloud for the judge to understand that any announcement of a decision to pursue the death penalty against Anders while she was without an attorney to represent her interests would be, at a minimum, politically unviable.  The media could portray the prosecutor as a bully and the entire proceedings a sham, despite Anders’ public demand for exactly what the State had announced it would seek.

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The judge now turned to one of Anders’ attorneys.  “Has Ms. Anders gone through that entire mitigation packet with you?” he asked.  If the attorney could verify that Anders was familiar with the contents of the binder and had reviewed all of it with them in advance of the hearing, then the judge could find that her waiver was knowing and intelligent without a prying, and potentially explosive, colloquy with Anders herself.

“She has refused,” the attorney replied.

“No, I didn’t.”  Anders interjected loudly.  “He keeps lying.”  Her voice sounded like the voice of an 8 year-old girl confronted by her mother on a road trip upon a younger brother’s complaints of her persistent kicks in the back seat of the car.

Her attorney stood.  “She believes that the mental health information was fraudulent,” he explained, “and she – her stated goal was to shred it.”

“Yep.”  Anders replied with a clip.  “I’ve read it.  It’s fraudulent.  I don’t want anybody to look at it.  I want it to get destroyed.”

The judge now looked directly at Kristen Anders.  “If your attorneys finished compiling that document only today,” he asked her, “when did you have an opportunity to look at it?”

Anders long hair fell over her eyes as she stared at the table.  “I haven’t seen all of it,” she admitted, “but they told me.”

The judge pushed the issue gently.  “Do you understand that you have the opportunity to have the prosecutor look at this mitigation package?” he asked her.

“I understand that,” she replied.

“Ms. Anders, listen to me,” the judge now insisted.  “I need to know:  do you want the mitigation package that was prepared presented to the prosecutor?”

“No.”  Anders told him.  “I don’t want him to have it at all.”

The judge nodded, more to signal his end of the discussion than to suggest any agreement.  “Well, counsel, I think that colloquy is as good as it’s going to get at this point.  Anything further?”

“Not at this time, Your Honor,” the prosecutor replied.

The judge then confirmed the next hearing, two weeks away, at which time he would expect to confirm the appointment of new counsel for Anders.  Without finding specifically whether Anders had sufficiently waived her right to submit the mitigation evidence to the prosecutor, the judge announced the conclusion of the hearing, gathered his files and began to leave the bench.

Anders’ attorney rose from his chair one last time.  He picked up the heavy white binder of mitigation materials and held it out in front of him.  “Does the Court want me to leave this with the bailiff?” he asked the judge.

“Not until an order is prepared sealing it.  Then you can leave it,” the judge directed him.  “Thank you counsel.  Have a good evening.”

With these words the judge rose from the bench and retired to chambers, leaving in suspension the fate of Anders’ mitigation materials.  Whether the prosecutor would have an opportunity to view them, and to be influenced by them in his decision on a death penalty prosecution, remained unresolved.  The judge was essentially gambling that upon confirmation of new counsel Anders would change her position on the materials, and the decision would not be one made by the court against her will.

For now, however, the parties would wait, and I would watch for events either to resolve on their own or to demand further involvement from the court.

3.5 A Volunteer for Death