"Damnit, I missed." Those were the words convicted double-murderer Joseph Zieler moaned to his lawyer seconds after striking him in the face with his elbow in a courtroom full of people.
Attorney Kevin Shirley knew something was up when the defendant beckoned to him and called him his first name.
"Throughout the trial, Mr Zieler would seek to confer with me, and since I was seated the farthest from him, he would wave me over and frequently called me 'Mr Shirley,'" he told the Mirror.
"For this particular occasion, he waved me over and called me 'Kevin,' and he seemed to be in haste."
The lawyer thought Shirley had wanted to discuss his testimony ahead of his upcoming sentencing, so he approached the convict.
As if anticipating a conundrum, the bailiffs closed in, Shirley said, and watched closely as Zieler motioned for Shirley to lower his head.
"I assumed it was because the microphones were there and he did not want anyone to hear what he was going to say to me," he said. "So, I leaned my head down, and I was facing a little bit away from him."
That's when Zieler seized the moment and struck Shirley "near the right eye with his elbow."
"At some point during that, he said, 'Damnit, I missed,'" the attorney said.
Shirley believes Zieler had been trying to strike him harder but had been unable to due to his handcuffs.
The lawyer doesn't believe the attack was personal, but he does think the convict "took advantage" of their "good working relationship" to lure the lawyer close to him so he could strike him.
"I'm just happy he didn't strike my co-counsel or, more specifically, our mitigation specialist," he said. "She was seated at the time, and he was closer to her until I walked over near him."
He also doesn't believe the attack came out of rage for Zieler's sentence. The convict had anticipated the death penalty, Shirley said.
Zieler was recommended for the death penalty in May for the rape and suffocation of 11-year-old Robin Cornell and her 32-year-old babysitter, Lisa Story, back in 1990.
On Monday, when he struck Shirley, the two had been at Zieler's appeal — the convict had been attempting to overturn the May decision.
He was ultimately sentenced to death at that hearing.
Shirley thinks Zieler may have been trying to cause a scene but isn't sure what the criminal was hoping to accomplish by doing so.
He also said he doesn't know what Zieler stood to gain by painting the word "killer" on his teeth on Monday.
The convict branded the word onto a veneer made of styrofoam he had made in prison, Shirley said, which he wore to the courtroom.
Following the elbow incident, neither Zieler nor any member of his family, who Shirley said he isn't close to, made any attempt to apologise to Shirley.
But Shirley is no stranger to client hostility.
“I’m sure I’ve upset clients along the way," he said. "I’ve handled 10s of thousands of cases, so I’m sure there’s more than one person out there that’s pissed off at me.”
Shirley has been handling death penalty cases since 1988 as a defense attorney. In all that time, however, he hasn't encountered anyone who took a swing at him.
"That was different," he said.
“I wish I could have defended myself — not necessarily punching him back, but at least I could have fended off his swing at me," he added. "That was the only embarrassing part was not seeing it coming.”
Despite the incident, Shirley is resolute in his drive to continue defending accused criminals.
“Somebody has to step up and defend," he said of why he decided to become a defense attorney in the first place. “We have no idea how many people are sitting behind bars that have no business being there. There are other organizations fighting the good fight and trying to free those people, and I’m just trying to do what I can to make sure they don’t get there in the first place.”
Shirley has also already brushed Zieler's attack — in part because he believes the double-murderer won't survive long enough to even see his sentence carried out.
“He’s 61 years old, he’s not in good health, and I don’t think he’s going to survive," he said. “I do not personally believe Mr. Zieler will be alive when he becomes eligible to have his sentence carried out.”
