3.5 A Volunteer for Death

3.4 A Line in the Sand

Book Three / 5

At the conclusion of the hearing I returned to my office in chambers and worked at my desk while waiting for the courtroom to clear.  A few reporters had followed the defendants out of the courtroom and down the hallway.  Others remained to interview Anders’ former attorneys.

Slowly the courtroom emptied out.  The judge left through the back chambers door, off to begin his summer vacation.  The clerk and court reporter both left for the day as well.  I walked back into the courtroom to see who remained, unable to go home for the day before securing the room.

One of Anders’ former attorneys was concluding an interview for the media.  When he saw me he turned quickly, grabbed the mitigation binder from counsel tables, and walked it over to the bar where I stood.  “I guess this is yours now.”  He handed me the binder with a slanted smile that suggested his relief at handing off not only the evidence of his work on behalf of his client but also the psychological weight of her defense.

I looked at the thick white binder.  Before the judge left he had signed the order directing the clerk’s office to file its entire contents under seal.  Ordinarily our courtroom clerk would take custody of any original document meant to be filed.  Part of her responsibilities was to ensure that all documents for the official file and all evidence introduced at trials were safely transported from our courtroom to the office of the clerk of the court.  But as the hearing had concluded late that day, our clerk had already left.  She would be unable to take custody of the binder until she returned the next day.

It was 6:00.  I took the binder from the attorney and placed it on my desk.  I then straightened up the courtroom, turned out the lights and locked the main doors.  Returning to my office I stared for a moment at the binder where it sat on the desktop surrounded by proposed court orders and stacks of briefs.  It had become transformed in my eyes into a symbol of Anders’ life that she herself had rejected.

What a strange, willful woman, I thought to myself.  Every appearance she had made in our court had been a struggle for everyone involved.  She was undeniably strong and intelligent.  But there was something wrong and wounded about her as well.  It had been apparent from the start, and I had sat quietly in open court through all of the prior hearings watching her conduct, her expressions, her engagement.

On one occasion her eyes had caught mine, and at the end of the hearing she made a point to call out to me by name and ask how I was doing.  I felt as though she had suddenly discovered who I was and what role I was playing in her life.  Through some swift calculation she had determined it might help her case to make contact with me.  Perhaps through more direct channels, she may have thought, she could better assure her success.

That had been weeks ago.  In the intervening days, without any assistance from me if in fact that’s what she sought, she had succeeded in nearly every stated goal.  Most importantly, she might have prevented the prosecutors from considering the binder of mitigation materials prepared by her counsel against her will.

Now, alone in chambers that evening, I opened the binder and began to read the reports and interviews on the current and prior mental, social, and family history of Kristin Anders.  What would they tell me about this defendant?  This odd woman whose conduct continued to confound those who sought to help her, and to appall those who only partially observed her personality?  Her attorneys had believed that its contents would mitigate the aggravating circumstances of the crimes with which she had been charged, if only the prosecutor could have an opportunity to review them.  The chances seemed good that a difficult, very costly capital case could be avoided if only Anders herself would not oppose providing the materials to the prosecutor for his review.

Anders had once admitted to a newspaper reporter that she knew that what she was doing on Christmas Eve was wrong, but she had become too worked up to stop herself.  “I’ve been through a lot my whole life,” she’d explained, “and my heart had hardened.  And when you get so full of hatred, it makes you capable of committing.”

Somewhere in that binder, now sitting on my desk, the story of Kristin Anders might reveal the reasons for her hatred.  Although hatred is no defense against murder, a history of childhood abuse or profound mental illness were exactly the types of mitigating circumstances the U.S. Supreme Court intended for juries to consider when determining whether the state, in their names as citizens, should put that individual to death.  It remained possible, however, that once the materials on Anders were filed under seal the next day, no one involved in the prosecution against her would ever see them.


I spent that evening in my office reading or reviewing nearly every page of the mitigation evidence assembled.  The custodian who cleaned the courtrooms on our floor of the courthouse had come and gone, greeting me upon arrival and finding me still at my desk, then completing her work and moving on down the hallway.  An older Filipina woman, she sometimes paused from her responsibilities long enough to discuss with me the problems she was having with co-workers who failed to appear for work, leaving her to cover all of the courtrooms on that floor by herself.  Or the health issues she experienced and her inability to describe to doctors her symptoms in English.  On this evening we spoke briefly before she returned to her work.

Late into the night I finally closed the cover of the binder and locked it in a desk drawer.  Tomorrow I would turn it over to the custody of our clerk, who would file the entire document under seal.  Tonight, however, it would sit in my desk and I would not stop thinking of it there, like a magic bullet, or a talisman with powers to control the direction Anders’ life might take.

Within the mitigation materials I had read numerous interviews conducted with surviving family members, teachers, employers, former friends, and — importantly — corroborating witnesses.  I had also read psychological and neurobiological evaluations, and a lengthy social history of both parents’ families dating back to the original immigrant generation.  As I had suspected, the evidence suggested a disturbing childhood and an abusive family environment.  The whole of the picture had yet to take shape, I knew, but if these stories were the foundation, I felt initially convinced by them that at the very least Anders, on the occasion of her crimes, had justified in her own mind the brutality of her acts with the brutality she believed she’d endured.

From inside chambers I closed the door into the courtroom, then turned out the last lights in my office.  I left the courthouse and slowly walked through the darkness to my bus stop a block away.  I would spend the long ride and the long night that followed unable to think of anything but Kristin Anders.  Captivated by what I had read, I would return again and again that night to the possibility of a life and a spirit demented and destroyed by a slow leak of hatred masquerading as familial responsibility.  What does it take to create a monster from a human child?  How long before a young girl, desperate to be loved and appreciated, becomes a repugnant, paranoid freak, utterly intent on the ruin of those she holds responsible for her pain?

Throughout the pages of all the reports and interviews I had read that evening I’d found explanations that brought me closer to answering both of those questions.  As the case stood at the moment, however, if the mitigation materials were not turned over to the State then the prosecutor would be exposed to none of it unless he discovered it on his own.  If he did not discover it on his own, he might file notice of the State’s intent to seek the death penalty and commit his office, on behalf of the county’s citizens, to a painful, expensive prosecution to ensure not only a jury’s verdict of Anders’ guilt but also its command to the government to put her to death.

I didn’t know all of the considerations that would enter the calculus of the prosecutor’s decision on seeking the death penalty, but certainly among them was the likelihood of his success at the very end of the trial in proving to a jury that any mitigating circumstances presented on behalf of Anders were not sufficient to merit their leniency.  In an interview with a local newspaper reporter the prosecutor had said of the looming decision that he would look at “the strength of the evidence.”  The ultimate goal, he’d explained, was “to make sure you have moral certainty that you can prove the case.”

Although it was left unspoken, in my own mind — while reading the prosecutor’s words — I’d considered that while a prosecutor’s moral certainty of conviction is helpful, his certainty of its affordability may be as pressing a concern.  The prosecution of two co-defendants on capital charges could cost the public millions of dollars, just for the trials.  At that price, pursuing the death penalty risked a serious loss of political credibility.

Having read the story of Anders’ family and her life with them I now found it difficult to believe that the story would not be persuasive to the prosecutor, that it would not play some significant role in his decision were he allowed to read it.  But who exactly had the power to decide whether he’d be given that chance?  If Anders refused to allow the materials to be handed over, could her new attorneys do so against her will?  Or if her new attorneys could not, could the judge intervene in the public interests of fairness and justice, and order that the materials be given to the prosecutor to help inform his decision?

One of Anders’ former attorneys had argued that giving potential death penalty defendants the power to determine whether mitigation evidence would be given to a jury short-circuits the justice system.  The decision to deliver a death penalty, he asserted, belonged to the society from which the defendant came and in which her crimes had been committed.  Speaking to the press, he had explained that allowing Anders to withhold evidence of childhood abuse and mental illness “robs the jury of the chance to determine whether or not, in their minds as representatives of the people, this person should be put to death.”  In other words, permitting a defendant to use the death penalty as a means for committing suicide at the hands of the State corrupts the very purpose of the punishment and makes each of us a participant in that corruption.

Although we were now in a preliminary stage of the trial and no jury was involved, the argument was relevant to the issue of the prosecutor’s preliminary decision.  If the public holds a significant interest in the fair administration of the death penalty in its name, shouldn’t the public’s prosecutor be required to view all available mitigation evidence before he decides whether to pursue a defendant’s death, even if the defendant opposes making it available?

In one of several conversations I had had with the judge on this issue, we had laid out the statutes and the case law and the arguments of counsel in some attempt to flesh out resolution to an issue not yet decided by the Supreme Court in our state.  At the outset we were leaning in different directions, and I struggled one afternoon to explain my thoughts on the matter.

The defense attorneys, I had argued, are required by law at this pre-notice stage to investigate and prepare mitigation evidence for the prosecutor.  That evidence is specifically intended to show the prosecutor that a particular defendant is not death-worthy, even if the defendant wants the death penalty imposed.  The statute empowered the prosecutor to make this preliminary decision on behalf of the county’s citizens, as their moral conscience and as their quasi-fiduciary.  In fact, the law required the prosecutor to consider available evidence before making his decision.  Both legal obligations would be rendered meaningless if a defendant could hijack the process by directing her attorneys to conceal the evidence they had discovered.

If, on the other hand, in the face of a defendant’s objection, the court could order that the materials be handed over to the prosecutor to aid his decision, then the prosecutor would know what the mitigating circumstances were that he must surmount at sentencing in order to obtain the death penalty from a jury.  He would have the opportunity before filing notice of his decision to analyze the evidence and determine that he might not meet his burden of proof if the evidence of mitigation appeared strong and credible at this early stage of its collection.  Armed with all the information available to date, the prosecutor would be capable of making the best decision on behalf of the public he was elected to serve.

In this way, in the end, all of the interests at stake in the matter — except for the defendant’s interest in her own death — would be served by the process afforded to the State by the laws governing his decision process.  The public’s interest in avoiding a costly, possibly undeserved, and potentially unsuccessful death penalty prosecution would be preserved.  At the same time, the defendant’s interest in forcing that public to condemn her to death, without an opportunity to grapple with an alternative, would be subjugated to a more appropriate deliberative process.

3.6 The World, a Stage