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After consideration, Judge Economou ruled that the prosecution’s mental-health experts would be allowed to examine King that day, because those examinations were necessary for the prosecution to rebut King’s defense.
At the same hearing, the defense noted as well that two victims were scheduled to give “victim impact statements” during the penalty phase, Rick Goff and Nate Lee. The defense had reviewed the written versions of those statements and asked the judge that some of the husband’s statement not be read before the jury. Specifically, they wanted struck that he would be “haunted forever” by the fact that his children were to grow up without a mother, and that telling those children why their mother was gone was “a lesson that no father should have to teach his children.”
Judge Economou ruled that those two portions of the husband’s statement would be deleted. The judge also agreed that the word “murder” in one statement be changed to “death.” These edits, he felt, prevented the statements from being unfairly inflammatory. It was a ruling that irritated friends of the victim, but it was made to ease the appeals process down the road.
CHAPTER 20
SEPTEMBER 1, 2009
The penalty phase began with the jury out of the room as the state accused the defense of discovery violations. Both sides were obligated to present the opposing side with all evidence they planned to introduce—witness statements, for example. Lon Arend complained to Judge Economou that transcripts of interviews the defense had done months before had been supplied to the prosecution only the day before, just after five o’clock. The defense, Arend maintained, would try to show that Michael King lived in a chronic catatonic state—and it was true, he couldn’t have looked more dead-eyed during the course of the trial. Yet, there were interviews with doctors who examined him that stated he was acting normally. Arend suggested that the judge impose upon the defense an admonishment or a fine for their violation of the discovery rules. Arend criticized the defense’s strategy, saying he had solid proof—the 911 tape, for example—that King was not catatonic.
In her own defense, Carolyn Schlemmer said she had been working “to get that stuff ” to the prosecution, and added that the state had had plenty of opportunity to depose defense witnesses scheduled for the penalty phase. They had chosen not to do so.
Perhaps sensing that the prosecution was on solid ground, the judge told the defense to try harder in the future to obey the discovery laws but rendered no punishment. There followed some discussion on technology that was going to need to be in place because one witness was testifying remotely, from Michigan. A teleconference would need to be set up. There was a chance that, while the audio was solid, they might lose the video.
Judge Economou said they’d cross that bridge when they came to it and ordered the jury brought in. The judge explained to the panel that this part of the trial was solely to determine what punishment the state would give King. There were two choices: life in prison without chance of parole, or death. They were to include the testimony that they had heard during this part of the trial and combine it with the evidence they heard in the first part, to make their decision. Just as with the first phase, there would be opening statements; each side would be given a chance to make its case, and there would be closing statements. He explained the concept of mitigating and aggravating factors, and how they should make their decision based on the weighing of these factors on a scale of justice. Aggravating factors were those that leaned toward death, mitigating toward life.
 
 
Lon Arend gave the opening statement for the state. The prosecution, Arend explained, intended to prove four aggravating factors: 1) The murder was especially “heinous, atrocious, or cruel.” This factor focused on the murder from the unique perspective of the defendant. 2) The murder was “cold, calculated, and premeditated,” without any pretense of moral justification. This factor focused on the
manner
in which Michael King killed Denise Lee. 3) The murder was committed for the purpose of avoiding a lawful arrest. This factor focused on King’s icy motive, which was to eliminate a witness who could have testified against him at a kidnapping and rape trial. 4) The murder was committed while King was committing a felony. This factor focused on the relationship between the murder and the commission of the other felonies.
Arend concluded his four-minute statement by saying he was certain the jury would find that the aggravating factors vastly outweighed the mitigating factors and that King should “forfeit his life” for the murder of Denise Lee.
 
 
Speaking for the defense, Carolyn Schlemmer reintroduced herself to the jury, explaining that she’d had the pleasure of speaking to them during voir dire, but not during the previous week’s trial. It was her job to present the case supporting the mitigating factors.
Despite the fact that the defense was going to argue for the more lenient of the two possible sentences, that did not mean that they were not respectful of the jury’s verdict, nor were they arguing in any way that the guilty verdict was wrong.
By arguing for the sparing of Michael King’s life, they were not downplaying the terrible loss of a human being in this case. They were not making excuses.
She reminded them that they were about to make a decision of life and death, what might be the most important decision they made in their lives. The defense was going to be presenting evidence about King’s life; but in doing that, they were not minimizing anything. She asked them to weigh and sift the evidence realizing that King’s life was at stake.
She tried to force the jury to think of Michael King as a person. She gave his birth date, she spoke of his siblings—then she got to the crux of the matter: King was a guy with mental problems, stemming from an accident he’d had as a child. The defendant took a direct blow on his “frontal lobe and top of his head.” Experts would testify about the physical proof that King’s brain injury existed, and about certain behaviors that could be caused by a damaged frontal lobe. They would explain how injury left King with a diminished capacity for distinguishing right from wrong, and that King possessed slow mental function (a two-digit IQ) and paranoia.
He had a loud ringing in his ears and suffered from chronic, unexpected nosebleeds.
In addition to the physical and mental problems King suffered, Schlemmer explained that there were elements of his
circumstance
that comprised mitigating factors. There were observable causes for King to be on edge. In fact, his life was spiraling downward and out of control.
“His only wife left him for another man that she met on the Internet,” she said. After that, King was granted sole custody of his son, Matt, who was now thirteen.
His girlfriend, Jennifer Robb, broke up with him on Thanksgiving Day. He was unemployed, losing his home to foreclosure. His house was pretty much empty because his furniture was all at Jennifer’s—where he had been living before they broke up.
He sought work, but each failure contributed to his developing and growing depression and paranoia. He returned to Michigan, where things were no better, and then headed back to Florida. He could no longer take care of his son; so he left him with his brother and sister-in-law. He spent Christmas in Michigan, where it became increasingly obvious that he was a sick guy. He was facing bankruptcy, and was scheduled to see a bankruptcy lawyer on the morning of the murder.
Schlemmer summed up: “After listening to all of the evidence, ladies and gentlemen, after you weigh the aggravating factors with the mitigating factors, this most important decision you’ll ever make, I hope that you will set aside your anger and emotions
I know that isn’t an easy thing to do—and see that Mr. King
is not
the worst of the worst.”
She noted that what she was recommending they do was not exactly merciful: “Michael King should be made to live the rest of his life in prison, away from his son, deprived of his freedom, where he will die in prison. The law allows you to do that.”
Regardless of their findings with respect to the comparative weight of the aggravating and mitigating factors, they were never
required
to recommend death. She thanked them and concluded her eight-minute statement.
 
 
Reading from a written statement, the prosecution’s first witness began, “‘Good morning. I am Rick Goff, Denise’s father.’”
On behalf of his wife and himself, he wanted the jury to know more about the daughter they lost, and to recognize how extraordinary she truly was.
He read aloud two statements written by Denise’s former teachers. Her tenth-grade honors teacher, Kari Burgess, described Denise as “bright as a shiny new penny.” A girl who “lit up a room with her smile.”
Denise’s law teacher called her “quiet,” but always willing to contribute to classroom discussions. He found her to be calm and imperturbable. No matter how hard he tried, he couldn’t “get a rise out of her” during lively classroom arguments. She was a “rocklike presence” in his class. When tempers flared, Denise had a calming influence. Her words were a “salve” to relax the tension.
The law teacher noted that he got to know Denise best through her writing, which was “thoughtful and contemplative.” Because of the differences between her spoken and written words, the teacher suspected that Denise did not want people to know just how smart she was. He called her “whip-smart, gentle, and compassionate with words.”
Rick then spoke on his own behalf, discussing the strength of his daughter’s character, a strength that developed when she was very young.
“‘She was a caring mother who always put her children first,’” Goff read. She loved the TV shows
CSI
and
Law & Order,
and never gave up her dream of one day attending law school.
She’d been a great friend, student, wife, and mother. Her life was bursting with potential. She breast-fed both children, and was still breast-feeding her youngest son when she was murdered.
“‘Denise was everything we could have wished for in a daughter and more,’” he concluded. Goff thanked the jury for listening, left the stand, and returned to his seat in the spectator area.
 
 
Nate Lee took his place. Whereas Rick Goff’s voice had been strong during his difficult testimony, Nate’s voice faltered. His voice shuddered with the never-ending pain of his ordeal, and he seemed on the verge of breaking down.
The widower described for the jury a videotape Denise had made of the boys. On the video, Denise’s voice could be heard, alive and happy as she played with her children. She was taking the video of the boys and could be heard saying, “Look, Noah. Oh, good job, Adam.” Her voice was soft and warm. The oldest boy took note of the camera and began to perform, bouncing up and down enthusiastically. “Are you dancing, Noah? You are silly.”
Nate told the jury that the video captured the real Denise, doing the thing she loved to do most, playing with her boys. She’d devoted her entire life, “her every breath,” to her family. Their two little boys were her life. He recalled her as a woman who could multitask. Breast-feed, change a diaper, do her homework, and fix dinner. Despite her hectic life, she maintained an even strain. She was task oriented, and no one who heard her voice on that video could question her nurturing nature.
Nate recalled one night when they were driving home from the Goffs’ house and Adam was very upset. He was screaming at the top of his little lungs. Nate urged his wife to go into the backseat and nurse the boy so that he would be quiet. Denise became angry at this suggestion because driving with the child out of his car seat was prohibitively dangerous. Sure, his screaming was annoying, but it was nothing compared to the risk they would be taking, the risk to his health, if he was removed from the car seat. Nate remembered being angered by her point of view at the time. But now, looking back on it, he realized that it was so typical of Denise, to see past the little bothers of life and look only at the big picture. The safety of the boys, of course, had to be their top priority at all times.
Lee recalled that when Noah turned two, Denise decided it was time to start potty training. His birthday had been in January of 2008, the same month in which Denise was taken from them. Denise went online and found a set of potty-training instructions she liked. She wanted to print them out, but their printer was broken. Instead, she hand-wrote two full pages of instructions.
For Denise, taking time for herself was never an option. She was either fixing dinner, doing laundry, nursing Adam, helping Noah with his ABC’s, or taking pictures of how cute they were. She wouldn’t even go to the mailbox without the boys. She’d changed her mind about being a lawyer. Now she wanted to be a speech therapist for autistic children.
Being a wife and a mother was “what Denise lived for.”
“‘The love in her heart was so warming that I never wanted to be away. I was proud to call her my wife,’” Nate said to the jury. “‘She was the love of my life, my soul mate. She was the perfect girl.’” Noah was now three and Adam two. They were amazing and knew that their mommy had gone to heaven and was an angel. The virtues that she already ingrained in them would forever radiate her love.
Finished, Nate Lee flashed a brief but meaningful glance at Michael King—if looks could kill—then returned to his seat.

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