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Authors: Michael Benson

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“Was Mike at all sick when he was a young child?”
Yes, the father said. When Mike was eighteen months old, he came down with double pneumonia and needed to be hospitalized for “quite some time.” He recalled Mike’s sledding accident very well. He’d heard a commotion on the farm and saw Mike being carried up to the house. The lower half of his face was covered with blood, and there was a huge knot on his head. He remembered very well trying to clean the boy’s face off, but there was blood all over the place. Then he put ice cubes on Mike’s head. They took him to the doctor, who said Mike’s teeth should eventually be okay, because he still had his baby teeth, but the head injury might be serious. Mike had to be watched closely, and his mom sat up all night with him. After that, in school, Mike was slow. He was in special ed because of a learning disability. Yes, he had nosebleeds—so bad, they took him to the doctor once, but Mike ran out of the office. James recalled asking the doctor what to do, and the doctor said to bring him back another time.
Switching to Mike’s adulthood, his father remembered him getting a divorce, after which Mike and son Matt moved to Florida, where James had a house and a trailer. They could live with them down there, Matt could go to school, and they could get Mike a local plumbing job. James remembered Mike having his problems in Florida, breaking up with his girlfriend and moving back to Michigan, where he couldn’t find work. He tried everywhere. Even Burger King wouldn’t hire him. Matt stayed with his uncle Jim and aunt Carrie, and Mike returned to Florida.
 
 
During Lon Arend’s concise cross-examination, James admitted to being biased. After all, Mike was his third son, and he loved him very much.
“Would it be fair to say that you can’t believe he did what he’s been convicted of doing?”
“No, I can’t.”
The witness was dismissed, the TV turned off, and the defense rested.
 
 
The jury was ordered out of the courtroom so Judge Economou could talk to the defendant outside their earshot. The judge explained that there were certain decisions in a trial that the defendant had to make for himself. He’d not wanted to testify during the guilt phase, but now had to decide again if he was going to testify during the penalty phase. The defendant said he’d discussed the matter with his counsel and would not be testifying this time, either. The jury was brought back in, and the state announced it had about an hour’s worth of rebuttal testimony.
The state called Dr. Michael P. Gamache. He was a forensic psychologist who had a doctorate in clinical psychology from the University of Missouri, and was a professor at the University of South Florida. His job, he said, was to interface between mental-health issues and the law. He’d been the recipient of federally funded grants to do research involving serial murders, lust murders, and the treatment of sex offenders within a community. He’d been a licensed psychologist in Florida for a quarter of a century. Although he had a private practice, he was routinely hired to evaluate accused criminals and was a courtroom veteran. He’d worked for both the state and for defense attorneys. In this case, he’d twice examined Michael King, first on April 2, 2009, and then again on August 31, 2009.
“Did you also receive documents to review [for] this case?” Lon Arend asked.
“Yes, I got five volumes of documents,” Dr. Gamache replied. These included handwritten correspondence between the defendant and his family and friends. There were also school, work, criminal, driving, and police reports. Dr. Gamache had been a spectator in the courtroom during the entire penalty phase of the trial and had witnessed the testimony of Dr. Joseph Wu. He’d also had a private conversation with Dr. Wu.
Dr. Gamache wasn’t a big believer in PET scans as indicators of behavioral problems, and preferred his own method: two tests that could better determine the existence and extent of neuropsychological problems. Yes, he’d administered both tests to the defendant. One was completely nonverbal. The subject was shown a picture in which something was missing, then two other pictures—one of which logically completed the first picture. The subject had to choose which one it was. The test divided subjects into three categories: healthy people, those with brain damage, and those who were faking brain damage. The second test, which also screened malingerers, was verbal. During one portion of that test, the defendant was given a list of words and had to determine which two were similar. The tests put King in the last category—the results of the tests were invalid because he was not trying as hard as he could.
Dr. Gamache said, “Mr. King’s test results were not an accurate reflection of his abilities. I believe his true abilities are superior to his performance when I tested him.” Why would someone take these tests but not give full effort? There were three possible reasons: 1) He was deliberately attempting to do poorly. 2) He was not motivated to do well. 3) He was distracted.
The witness had also given King an IQ test. He scored a seventy-six. King had received two other IQ tests in his life, scoring eighty-five in 1979 and eighty-two in 1984. All three tests were given after the defendant’s sledding accident and were similar. It was Dr. Gamache’s opinion that King’s IQ was, and had been for most of his life, in the low-average range. Average was one hundred. About 95 percent of subjects would score somewhere between seventy and 130. Those who scored below that range were considered mentally retarded; those who scored higher were considered intellectually superior. With King, there was no evidence of mental retardation, and his IQ put him in a potentially functional range. Many subjects with similar IQ scores were “street-smart,” held down jobs, married, and raised children.
In addition to his belief that the PET scans as interpreted by Dr. Wu were a misapplication of technology, the witness had another bone to pick with Dr. Wu.
“Paranoia is not a symptom of frontal-lobe damage,” he said.
Difficulty in controlling impulses, yes; difficulty in mood regulation, yes; paranoia, no. Bottom line, it was Dr. Gamache’s opinion that Michael King’s ability to conform to the law was not impaired. From a psychological point of view, the defendant was fully responsible for his own actions.
 
 
Carolyn Schlemmer began her cross-examination by chipping away at the doctor’s credibility. No, he wasn’t a psychiatrist. No, he wasn’t a medical doctor. Board certified as a psychologist? No. He didn’t create or interpret PET scans. Lon Arend had hired him.
And why was Michael King distracted during Dr. Gamache’s tests? Could it be because they were administered on the same day that the defendant was found guilty of capital murder? A little thing like being found guilty of murder could distract a person, couldn’t it?
Dr. Gamache reiterated that the test he’d administered on the day of King’s conviction had been the one he’d found to be invalid, and distraction was one of the possible reasons why.
The witness had testified that he’d looked at volumes of documentation before passing judgment on King. Now he admitted that every single sheet of those documents had been supplied to him by the prosecution.
“Would you agree that inappropriate aggression and sexual behavior can be signs of brain damage?”
“Yes.”
“My last question,” Schlemmer said. “How much are you getting paid?”
“Two hundred fifty dollars an hour.”
“You’re charging Mr. Arend two hundred fifty dollars an hour for this entire week?”
“Yes.”
Dr. Michael Gamache was allowed to leave the witness stand, and Detective Christopher Morales, who had already testified during the guilt phase of the trial, now returned.
 
 
“Detective Morales,” Lon Arend said, “how much time did you spend with the defendant on January 17, 2008?”
“Nine hours.”
“During those nine hours, was the defendant lucid?”
“Yes.”
“No further questions.”
 
 
On cross, Carolyn Schlemmer asked if Detective Morales had ever had any dealings with Michael King before this case. The witness said there had been a civil dispute in 2003 that resulted in no charges being filed. Was it true that the witness monitored King’s phone calls while he was in jail following his arrest in this case? The detective said it was.
“Were there indications of paranoia on any of those tapes?”
The witness said that wasn’t his call. He was a cop, not a shrink. But he could describe what he had heard. The defendant was kept on the fourth floor of the jail, in Cell A, which was suicide watch. He’d called one of his brothers and had told him about a conspiracy theory he had: “They were out to get him, and that he feared he was to be raped and murdered by his jailers. He asked his brother to call 911 from Michigan and to get him out of jail.”
Schlemmer allowed the jury members, who weren’t shrinks any more than the detective, to make up their own minds as to whether King was paranoid. That concluded Detective Morales’s testimony, and the presentation of evidence. As it was past three in the afternoon, Judge Economou dismissed the jury for the evening. He ordered everyone back the next morning for closing arguments and deliberation.
 
 
With the jury gone, Carolyn Schlemmer objected to four of the state’s aggravating factors. Firstly she claimed that because the defendant had already been convicted, the second trial represented double jeopardy. The prosecution had also argued that the motive in this case was cold-blooded, a simple case of witness elimination, but Schlemmer said there was no evidence backing that up. They had no idea what the motive was. There was no tape of the defendant saying anything to the effect of “Well, I guess I’ll have to kill you now.” The prosecution’s theory was merely surmise, and the cold-bloodedness of the murder should not be an aggravating factor.
When asking for the death penalty, unless the victim was a cop, the state had to prove motive, Schlemmer argued. She said there was not even evidence that the murder was premeditated. A plan to murder, on King’s part, could not be inferred from his plans to commit another felony.
Lastly she objected to the aggravating factor that the murder of Denise Lee was “atrocious and cruel.” Again—no evidence. There was no testimony substantiating pain endured. They didn’t even know if the victim was conscious when she was killed. As a matter of law, gunshot wounds were not considered cruel. That aggravating factor was usually reserved for cases in which there was evidence of torture, and there was no such evidence here. Even if the victim was conscious, there was no evidence of cruelty. There was evidence that there was duct tape over the victim’s eyes—in which case, she might not even have known the gunshot was coming.
Schlemmer could see and hear that spectators were horribly revolted by her argument, and she apologized for upsetting people, adding that she was speaking merely of aspects of the law.
Judge Deno Economou quickly overruled all of Schlemmer’s exceptions, stating that the prosecution had presented evidence demonstrating that, before her murder, Denise was kidnapped and confined—
which in itself was cruel.
He also stated that the borrowing of the shovel while the victim was alive, and the fact that the victim was found buried, was evidence of premeditation.
CHAPTER 23
SEPTEMBER 4, 2009
A cogent Lon Arend told the jury that the defense had tried to
distract
them from the facts of this case. They’d seen pictures of Michael King’s childhood, met members of his family who loved him. It was all a diversion. The only thing the jury should focus on when making their decision—life or death—was what the defendant did to Denise Lee.
“Think about the
way
he ended her life,” Arend said.
The jury’s job was to weigh the mitigators against the aggravators; so each time the defense talked about a mitigating factor, they should weigh that against the evidence they had heard about just what a horrible, premeditated, and cruel crime this was.
Michael King had had the opportunity to let Denise go, right up until the moment he pulled the trigger. There was only one reason why he made the decision he did. He did not want her testifying against him for the kidnapping and rape he had already committed. Nothing could be colder than that.
Arend understood how brave the jury would need to be—condemning a man to death was a very heavy thing. But they were there to answer the question of punishment, and there was only one punishment that fit the crime: death. Even if one assumed that
all
of the defense’s mitigating factors were true, hardly a given, they didn’t come close to outweighing the aggravators.
And were the mitigating factors true? The defense would argue that the defendant had a brain injury and lost his ability to resist impulses. Okay, how did that fit in with what they knew? Truth was, the murder wasn’t impulsive at all. It was cold-blooded. They shouldn’t forget that shovel he borrowed. With Denise Lee in his car, alive and surreptitiously on the phone, the defendant already knew how this would end.
They said he had a low IQ, that he was a good worker, boyfriend, and father. How much weight should the jurors give that? It was up to them.
The defense would argue that the death penalty was not necessary because the defendant was a model prisoner and had presented no disciplinary problems. Well, sure, he was in solitary confinement. How much opportunity did he actually have to break jail rules? How much weight to give that? Up to them.
He asked them to think about the testimony of Jane Kowalski, who’d heard the victim scream. It was not a light scream, but rather a scream like she had never heard before.
The defense would argue that evidence suggested Denise was blindfolded with duct tape when she was shot, that she didn’t see the gun; therefore, the crime was not cruel. But that ignored the fact that her eye was missing, exploded from her head, an impossibility if there was duct tape over her eyes.
Everything they knew about Michael King on the day of the murder indicated that stress had nothing to do with it. He’d been calm and acted normally at the gun range. His girlfriend at the time spoke to him on the phone
during the abduction:
calm and normal. They heard him on that horrible, horrible 911 tape. Calm and normal. Just mean.
The defense would have them believe that the defendant was incapable of following laws; yet, he had successfully followed the law his entire life. He didn’t even have a reputation for losing his temper. His ex-girlfriend testified that she hit him during arguments, but he wouldn’t hit her back.
There were contradictions in the defense’s argument that he wanted the jury to consider. On one hand, they said, he couldn’t follow rules. On the other, he was a perfect prisoner. Which was it?
The prosecutor suggested the defendant’s so-called history of violent behavior was largely a construct of the defense. Jim King, the defendant’s older brother, testified that he’d heard about the sledding accident but never had a reason to give it much thought. He hadn’t even heard about the chain saw and bow-and-arrow incidents until a couple of weeks ago.
Dr. Joseph Wu’s fancy photos of the defendant’s brain supposedly indicated brain damage—but there was no corroborating medical evidence. None of the doctors who examined the defendant diagnosed brain damage. The only corroboration came from the statements of the defendant’s family regarding what they claimed was bizarre behavior.
The family didn’t want to believe that Mike really did what he did—so they desperately scanned past incidents searching for something,
anything,
that might explain the unexplainable. And they settled on this sledding accident. The snowmobile was going ninety—no, eighty miles per hour! If a six-year-old’s head hit something as solid as a pole or a shed at even forty miles per hour, he might have been decapitated. Arend wasn’t suggesting that the family was lying, just that they were justifying, using hyperbole to soothe themselves, to lend sense to the nonsensical.
How tenuous was the connection between the sledding accident and the murder of Denise Lee? There were thirty-seven years separating the two events, years during which the defendant had a job, a family, and a home. Since the murder, he’d been a model prisoner. The
only time
he demonstrated poor impulse control was on January 17, 2008.
The defendant’s IQ didn’t set him apart. His PET scans didn’t distinguish him from the masses. The only thing that distinguished Michael King on that day was that he kidnapped, raped, and murdered Denise Lee.
Arend recommended that the jury listen to the victim’s 911 tape one more time during their deliberation. He suggested that was all they were going to need to know when deciding what punishment King deserved.
 
 
Carolyn Schlemmer told the jury that they were
never
required to recommend a death sentence. Even if they found that the aggravating factors outweighed the mitigators, they still didn’t
have
to recommend death. Even if
all
of the factors were aggravating and
none
mitigating, they could
still refuse
to send the man to his death.
She understood the emotions the jurors were feeling: anger and sadness. It was perfectly natural after learning of the loss of Denise Lee. But the law said they could
not
recommend death based on anger; they could
not
recommend death based on sympathy for the victim. Emotions, the law said, could have
nothing to do with it.
She asked the jurors to take a deep breath and base their decision on the evidence. A punishment of life in prison without parole did not diminish Michael King’s responsibility for the crime. It did not diminish the value of the life that was lost on that tragic day.
Schlemmer argued that the first aggravating factor—that King murdered the victim in the course of committing a felony—was inherent in their guilty verdict. To consider it again represented double jeopardy.
She argued that the aggravating factor—that the murder was especially heinous or cruel—had
not
been proven beyond a reasonable doubt. She firmly disagreed with Lon Arend on this point. From the time King pulled his Camaro onto Toledo Blade to get away from Jane Kowalski until the time he was arrested hours later,
no one knew for sure what had happened.
It was the medical examiner who had suggested that the victim’s eyes might have been covered with duct tape, that the killer might have been standing either on the side or behind the victim when she was shot. These were things they should consider when weighing the heinousness and cruelty of the murder.
Schlemmer reminded the jurors that
nothing
the defendant did after the murder weighed on the question before them. She suggested that King’s IQ was so low that premeditating a murder and eliminating a witness were concepts that were beyond him.
She shifted from hammering away at the aggravators to promoting the mitigators, and she referred to the defendant by his given name. Mitigating factors, unlike aggravating factors,
did not
need to be proven beyond a reasonable doubt.
They had seen and heard Mike’s family describe his head injury. They could decide for themselves if Mike’s dad and brothers were lying. Dr. Joseph Wu’s PET scans scientifically corroborated that eyewitness evidence. Dr. Wu said symptoms could wax and wane, and witnesses agreed that the buzzing in Mike’s head came and went. Everyone who described Mike’s inappropriate behavior said it came and went.
She had one comment about the prosecution’s rebuttal witness, Detective Christopher Morales. He was more cooperative with the prosecution than with the defense, so the jury shouldn’t think they were getting fair and balanced testimony. When the prosecution asked the detective if Mike was lucid, he enthusiastically said yes. When the defense asked if Mike was paranoid, he said he couldn’t answer because he wasn’t an expert. He was an expert in lucidity and not paranoia, it seemed.
Dr. Gamache, who administered an IQ test to Mike the day after his conviction, said he found the results invalid, but he used those results to attack the PET scan evidence, anyway.
All of those professional experts testifying on behalf of the prosecution were being paid very, very well for their testimony—another thing that had to be weighed when determining their credibility.
Mike had been depressed during the weeks leading up to the murder, acting very strangely—and there were a lot of real factors in his life that explained that depression. Here was a man whose life should be spared—this good father, good boyfriend, this good prisoner.
Lon Arend would have them believe that there was something sinister afoot with the family’s description of Mike’s head injury. That was bull. The sledding accident
happened.
Everyone agreed it happened in more or less the same way. That wasn’t any less true if the brothers, who were children at the time, overestimated the speed of the snowmobile when Mike’s head impacted the pole. They all agreed that he received medical treatment and there was nothing doctors could do—which would have been exactly what doctors would have said if the diagnosis was a severe concussion.
It was
so important
that the jury look at the totality of Mike’s life: a good person, but with academic difficulties, such a good father that he got custody in the divorce, law-abiding, no trouble, no drugs or alcohol. His life was spiraling down, down, down. He was suffering losses—his wife left him twice for a chat room Romeo. Depression, peculiarity. The prosecutor wanted them to think Mike’s lack of violent behavior before January 17, 2008, was a contradiction when it was merely
context.
The jurors did not have to limit their deliberations to the examples she was giving them. If they remembered something from the trial, any little point, that made them think executing this man was wrong, they should listen to that voice.
It was easy to concentrate solely on the terrible pulling of that trigger and the ending of a wonderful life, and it was easy to say that this was a case that was “crying out” for the death penalty. But that was only true when taking the horrible event out of the context of Mike King’s entire life.
“I submit to you it is hard to do,” Schlemmer said. “You must set aside the enormity, the sympathy, the anger—and look at the totality.” To do anything else would be to make a terrible, terrible mistake. No one was asking them to excuse Mike King for the thing he did. They should not underestimate the severity of the punishment that was life in prison without chance of parole. Mike King would lose everything, his family, his son, his freedom—and he would lose those things forever, for he would
die in prison.
Carolyn Schlemmer said that she had confidence in this jury, that it was comprised of levelheaded men and women who would not do anything rash. They would take a breath and weigh everything. This was nowhere near to being the most egregious case. She begged them to choose life in prison.
“He will die in prison,” she repeated.
She thanked them for their time and attention; then she sat down.
 
 
After a twenty-minute break, Judge Deno Economou gave the jury its instructions. He explained that, technically, he was the one who decided the defendant’s punishment. What they were working on was their recommendation, an “advisory sentence.” They shouldn’t take the matter lightly, however, as he promised to give their recommendation “great weight.”
The jury was to decide, in essence, if the defendant’s crimes were especially heinous, shocking, or cruel. Were the crimes cold and calculated?
On the other side, they were to consider whether Mike King could appreciate the gravity and quality of his actions when he was committing his crimes.
Was his ability to distinguish right from wrong impaired? Was his life worth sparing?
How much weight they gave to each piece of evidence was completely up to them.
They were the judges
when it came to the honesty and straightforwardness of each witness. Were some witnesses testifying because they had a personal interest in the outcome of this case?
They were to infer nothing from the defendant not testifying on his own behalf. If they felt aggravators outweighed mitigators, they could, if they chose, recommend death. They were not required to decide on death, no matter how they felt about the weight of the evidence. The vote did not need to be unanimous.
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