3.7 Striking Death

Book Three / 7

On the last day of January, five years after Mackey and Anders murdered Anders’ family on Christmas eve, we convened court with both defendants, their teams of attorneys, and the deputy prosecuting attorney.  It was a Thursday afternoon, near the end of a winter day.

Through the years our court had presided over the withdrawal and substitution of numerous attorneys for Kristen Anders, as well as one substitution of counsel from Mackey’s team.  The judge had entered an order on the handling of sealed materials, which was appealed to the state’s Supreme Court.  He had determined the process he would use for deciding which of the two defendants would be tried first, and the attorneys had briefed and argued their positions on the issue.  And both defense teams had filed numerous, lengthy motions against the availability of the death penalty for their clients.

By this time four years had passed since the prosecutor’s notice that his office had decided to pursue the death penalty against both Anders and Mackey.  The judge had granted four continuances of the deadline for that decision to give defense counsel sufficient time to research mitigation materials and for the prosecutor to review them.  Although I had read the early batch of materials for Anders when they’d been filed with the court upon the withdrawal of her first team of attorneys, the judge had neither seen nor considered them for any motion.

Moreover, neither of us knew whether the materials had found their way to the prosecutor.  Whether or not the prosecutor had reviewed them, he had chosen to pursue the death penalty.  Nearly a year after the Christmas eve on which the crimes were committed he’d filed his formal notice and served a copy on the parties and on the court.

The one-paragraph document was titled Notice of Special Sentencing Proceeding to Determine Whether Death Penalty Should Be Imposed.  Its text simply asserted that a special sentencing proceeding would be held to determine whether the death penalty should be imposed.  It then recited the statutory basis for that decision:  “there being reason to believe that there are not sufficient mitigating circumstances to merit leniency.”  From that date forward the prosecution of Anders and Mackey was for the commission of the state’s only capital crime, aggravated murder.  The penalty each faced was either life in prison without parole, or death.


In late autumn of the previous year the defendants had filed what was thought to be their last motion to stop the prosecutor from seeking the death penalty before trial was set to begin.  None of their prior motions had been successful.  The Court had heard the attorneys’ oral argument on this motion a few weeks earlier.  Today the judge would give his ruling.

Capital murder cases are demanding and time-consuming under routine circumstances.  When they involve codefendants they become especially difficult.  The defendants prepare their cases not only against the State but against one another as well.  Defense attorneys must pursue every angle available to defend their clients, not merely out of personal moral compulsion or professional obligation, but also to comply with the constitutional requirement of effective assistance of counsel.

Over the years, with both sides engaged in the background work of developing their cases, counsel for Anders and Mackey had brought numerous motions to dismiss the death penalty against their clients.  In turn, the prosecutor had defended the government against their demands.  He had also filed his own motions whenever he met a defendant’s persistent roadblock against his efforts to move the prosecution forward.

Prosecution for capital murder is considered by all to be — true to its name — deadly serious.  Nevertheless, at times it can seem as though the parties are engaged in a medieval game of chess, each defendant aware that if he loses the match then the king will have his head.  They plan and plot, advance and retreat, and as their strategies develop, the years pass.

The Court plays its own role, keeping track of time, imposing process and structure, and balancing the often competing demands of fairness and function.  The judge and I methodically moved the cases forward like two oxen yoked to a plough, our heads lowered, plodding one heavy leg after another.

The judge was always mindful of the way a particular act, or failure to act, might appear appropriate at the time, but years later be seen as having produced a critical error.  Even a minor mistake can cause another, and then another, the sum compounding like interest on a credit card debt, each new total mounting unobserved at the bottom of monthly statements tossed before opened.  Over time the errors accumulate, and a reviewing court may return the case to the trial court for correction.  Sometimes that correction means a new trial.  No one involved in our cases would want to start over.

The judge had previously ruled that Anders’ and Mackey’s trials would be severed; though codefendants, the two would be tried separately rather than together in a single trial, and Mackey would go first.  The date was set and juror summonses were mailed.  The first trial was expected to last about six months.  Jury selection alone, with layers of case law requirements upon its process, would require a total of six months from the date of mailing the summonses to the final seating of sixteen jurors to hear the case.

By the time of the hearing for which we had assembled that January afternoon, jury selection was scheduled to begin in a few weeks.  Summonses had been mailed to three thousand prospective jurors with the expectation that, as usual, approximately twenty percent would respond.  We had calculated that the Court would need to begin with no fewer than six hundred prospective jurors in order to seat a jury of twelve with four alternates.

The summons notified the recipients that if they believed they had a personal hardship that would render service especially burdensome then they could provide that information through the internet portal set up to receive the requests.  Many prospective jurors had done that, and we had set aside a couple of weeks to discuss their requests in open court, with counsel and Mackey present and the information on the record.  We had already convened one day for hearing those hardships, and several jurors had been excused from having to appear.

In the meantime, the defendants’ final motion remained for the Court’s decision.  It was the last in a long series of motions to strike the death penalty.  Striking the death penalty meant that the Court was ordering the prosecutor not to seek the death penalty against the defendants.  It did not mean that any charges would be dropped, only that a jury would never have the option to impose death as the punishment.


We had convened several times for hearings just like the one we were about to begin.  They were hearings on separate motions that differed in the legal theories advanced but with the same request for relief:  no death penalty.  They would begin with the prosecutor announcing the case for the record and reciting the parties’ appearances.  The judge would summarize the nature of the motions and the relief requested.  He would then read his ruling aloud before filing the written decision with the clerk.

Nothing about the present hearing suggested to the parties that the normal course would be different.  No media had appeared to cover the hearing.  The defendants were seated next to their attorneys at counsel tables, and the prosecutor sat nearby.

The hearing began normally, and the judge announced the nature of the motion before him that day.  The motion, he began, was the defendants’ request that the Court dismiss the State’s notice of its intention to seek the death penalty against them on grounds that it was filed in violation of their equal protection and due process rights.

We had been here before.  The territory was familiar.  The prosecutor had not brought any files with him.  He had a few sheets of paper on the desk before him which he shuffled somewhat mindlessly.  Defense counsel alternately watched the judge as he read his decision, glanced at their laptop computers, and whispered to their clients.  They were half-listening to a formality.  A few family members observed quietly from the back of the courtroom.  They had attended every hearing over the years.

At one point I caught the eyes of an attorney as his gaze shifted.  I lingered briefly rather than glancing away, trying to suggest from the gesture that this time would be different.  Pay attention, I’m thinking as our eyes meet, this day will disrupt the course of events.

The Court’s decision was thirteen pages.  The entire ruling had led slowly to the first paragraph on the last page.  Arriving at the paragraph the judge did not hesitate:

“After considerable deliberation and for the reasons set forth herein, this Court concludes that the Prosecutor erred as a matter of law in considering the strength of the evidence on the issue of guilt when exercising his discretion to file the Notice of Intent.”

The impact of the Court’s decision was instantly apparent to the attorneys.  Their bodies jolted upright and their eyes opened wide, as though they had been literally shocked.  “The Court hereby strikes the notice of intent to seek the death penalty as to both defendants.”

With the last sentence the impact of the ruling became obvious to the defendants as well, though little time remained for them to process it with their attorneys.  The order was given to the clerk, the hearing concluded, and the judge left the bench to return to his chambers office.

I watched Mackey’s lead counsel walk directly to the prosecutor.  I listened as she declared triumphantly her intention to contact him the next day to arrange for her client to enter a plea of guilty and accept a mandatory sentence of life in prison without possibility of parole.  The prosecutor, bewildered from the unexpected turn of events, gathered his papers and attempted to steer around the activity.  The faces of the victims’ family reflected confusion about the meaning of the ruling, and they looked to the prosecutor for an explanation.  He headed in their direction and ushered them away.

The jail officers secured the defendants and led them out of the courtroom.  As defense counsel huddled in two separate circles, I picked up my file and retreated into chambers.


The next day the prosecutor’s office appealed the court’s order and trial preparations ground to a halt.  We would be unable to proceed until the state’s Supreme Court ruled on our court’s decision.   Seven months later the Supreme Court would issue a stinging decision of unanimous reversal.  For the moment, however, we waited and watched as the attorneys shifted strategy and cautiously moved their pieces on the board.

The judge had band practice that evening.  After sharing speculation on what might happen next, he gathered a stack of papers containing some motions that were on the court’s calendar the next day, and then left his office through the back hallway.  I stayed long enough to respond to a couple inquiries from reporters who were beginning to learn of the court’s decision.  Declining to summarize the order for them or discuss its ruling, I directed them instead to the full text of the order already posted on the court’s main website for their review.  Just in time for the evening news.

3.8 Punctuated Equilibrium