Broken Doll (14 page)

He also wanted the press excluded from the jury selection process, again showing no reason why the press should be excluded.

In a typical case, a defendant will seek a court order limiting press coverage only inside the courtroom. In this case, Clark wanted the press further restricted, even so far as they could not attempt to engage him in conversation.

This request by Clark had no precedent. In fact, Washington State previously ruled that “an order that forbids future communication is a prior restraint on the exercise of free speech.” As such, the prior restraints proposed by Clark were unconstitutional.

The defendant actually wanted the press prohibited from even asking him questions. “The defendant does not want to speak to any member of the print or broadcast media. Consequently, there is no legitimate reason why reporters should attempt to speak to him,” stated the motion on his behalf. Not wanting to be asked questions by the press is not a constitutional right, and is insufficient to justify prior restraint on speech.

The
Seattle Post-Intelligencer
newspaper, part of the Hearst Corporation and represented by Hearst's legal counsel, joined in opposition to Clark's emphatic demands. The
P-I
asserted that the motions must be denied because they violated the First Amendment to the United States Constitution as well as the Washington State Constitution. Both constitutions guarantee public access to judicial proceedings and other public places. Clark's request for the court to control media access to the trial and public areas near the courtroom were, in the final analysis, ruled overbroad and without any justification. Most importantly, Clark's request would deny media outlets their constitutional rights as assured in both federal and state law.

There is a presumption in favor of access to judicial proceedings under the First Amendment to the United States Constitution. Further, the United States Supreme Court has explicitly recognized the public's right of access to criminal trials. The Washington State Constitution also supports this well-established right: “Justice in all cases shall be administered openly.” This separate, clear, and specific provision entitles the public to openly administered justice.

There was more at stake than the rights of free press and free speech. These guaranteed freedoms share a common core purpose of assuring freedom of communication on matters relating to the functioning of government. The United States Supreme Court had previously ruled, “The press does not simply publish information about trials, but guards against the miscarriage of justice by subjecting the police, prosecutors, and judicial processes to extensive public scrutiny and criticism.”

The
Seattle Times
chimed in with a letter of support for the
Herald,
and KING -TV addressed the defendant's motion restricting the access of cameras to the proceedings, and forbidding reporters from asking questions of the defendant.

The ability to observe the conduct of judicial proceedings is particularly important in cases where there are highly charged public issues involved. “Resolution of the criminal proceedings in this matter is of significant public concern,” wrote Jessica Goldman on behalf of KING -TV, “and television access is critical to securing the public's right to observe this criminal trial.”

The rights and freedoms that assured the American people free speech, free press, and the free flow of information would not be denied by Snohomish County in the case of Richard M. Clark. There were other motions, however, governing what could and could not take place in the courtroom that the court approved. Amongst them were rules to which Gail Doll and Tim Iffrig were compelled to obey.

 

 

 

Two days prior to the rigorous process of jury selection, Gail Doll and Tim Iffrig signed their agreement to abide by the court's rulings affecting witnesses. “The pretrial rulings,” explained the deputy prosecutor, “are exactly that—rules. The violation of any of them, and there were six in total in this particular trial, could have serious ramifications.”

The six rules for witnesses in the trial of Richard M. Clark were as follows:

Witnesses shall not mention the term “polygraph” during their testimony, nor shall any witness testify about, mention polygraph tests or polygraph test results.

Witnesses cannot discuss their testimony with each other until each of them has testified and been excused from further testimony by the court.

Witnesses cannot discuss their testimony, their feelings regarding testifying, or related topics with members of the press or other media, except upon order of the court.

All witnesses shall be excused from the courtroom until they have testified, with the exception of Detective Lloyd Herndon and members of the Doll-Iffrig family.

No witness shall testify regarding prior crimes of the defendant, except upon order of the court.

No witness shall testify regarding the ruse attempted by detectives and the FBI agents wherein the defendant was told that Agent Vanderberry was “counsel.”

No witness could mention the Vanderberry ruse but the word was already out. The Washington Association of Criminal Defense Lawyers heard about this ruse and was infuriated that chief criminal deputy prosecutor Jim Townsend actually knew of the investigators' plans but did not stop them.

Association president Mark Muenster contacted Washington State governor Gary Locke, objecting to any consideration of Townsend for appointment to a Snohomish County judgeship. “If I were the governor's counsel, the guy who advises the governor on appointments, I would want to know about any potential skeletons in the appointee's closet,” he said.

“Law officers never should be encouraged to pretend to be lawyers,” Muenster said. “This kind of ruse that was used by the FBI agent and approved by Mr. Townsend is very corrosive of the trust between lawyers and their clients.”

Despite possible corrosion or blatant deception, the trial process was underway. The final days of February saw the first days of jury selection, and the final days of DNA analysis of evidence by forensic scientist Dr. Raymond Allen Grimsbo, director of Intermountain Forensic Laboratories in Portland, Oregon.

Grimsbo attended Portland State University, graduated in 1973 with a major in science, and minor in biology and psychology. In 1984, he went back to school and graduated in 1987 from the Graduate School of Union Institute with a Ph.D. in forensic science.

“My dissertation and research,” said Grimsbo, “was in the area of analyzing bloodstains for genetic markers. Currently I hold a teaching appointment in Portland State University, and I held appointments at the Health Science University in Portland and several of the smaller colleges in the area. Currently I do case work and direct the laboratory. I direct the day-to-day activities in the laboratory, just the overall running of the laboratory, dictate policies, which procedures are to be used and general directions.”

As for expertise in forensic science, Grimsbo's specialized training bespeaks volumes. “Prior to becoming a forensic scientist, I was a medical technologist in a clinical laboratory in Portland. In 1975, I went to work as a trooper for the Oregon State Police, and was assigned to the crime laboratory in Portland. Over the next nine and a half years, I was trained by the state police in general criminalistics—which is evidence collection—everything from hit-and-run accidents to murder scenes, to analyzing trace evidence—which would be like hairs and fibers—and from that to serology—dealing with biological fluids—toxicology to firearms, and just a broad spectrum area, more like a general practitioner. The specialty that I gravitated toward was serology or biological analysis. I was trained by the state police and took classes at the universities, classes with the FBI and various other groups to expand that, joined several associations—for example, I'm a fellow in the American Academy of Forensic Sciences.”

In 1985, Grimsbo left the state police, established a private practice that was incorporated in 1987, as Intermountain Forensic Laboratories. “Right now,” he said, “our laboratory does testing all over the country.

“We are a clinical laboratory,” explained Grimsbo, “besides being a crime lab, in that we can do analysis for physicians that want to diagnose disease in people. Our specialty area for that is toxicology—drugs and poisons. We have a specialty license in that, and we adopt the guidelines that are required of the clinical laboratory. The guidelines of the professional associations in the forensic area are all incorporated into our laboratory practice.”

Ray Grimsbo is also no stranger to the courtroom as an expert witness. “I've testified in court regarding PCR and DNA analysis in Oregon, Washington, Indiana—I believe, Hawaii—Montana, Florida, and probably some more. I don't recall them all, but quite a few.”

For those unfamiliar with polymerase chain reaction (PCR), Dr. Grimsbo happily explained his work and the high standards utilized in evaluation of evidence submitted to him for examination.

“PCR is an amplification process for typing DNA,” Grimsbo explained. “We have a separate room that is set aside, that the only thing that's done in there is the amplification and the typing of the DNA itself. We have other areas in the laboratory that we will examine evidence, take cuttings from the evidence. And then we have a biological area, where we will extract the DNA and do setup. And from there, it will go into the PCR room and be worked up in there.”

Techniques are utilized in the laboratory to minimize the possibility of contamination when conducting a PCR/DNA test. “We have very stringent protocols,” confirmed Grimsbo. “In fact, sterile technique begins when we are just cutting or taking our samples, one item at a time, on the deck, new paper every time. After we have taken cuttings from the sample in an area of interest—let's say we identified some blood on an item, we did that with forceps and tweezers that we use, which get rinsed in Clorox, water, and ethanol, then dried. Then we cut a clean control area, where there is nothing, so you can gauge background and that. Aside from wearing gloves, scrubbing the decks, what I consider normal in a clinical or in a DNA laboratory, we are pretty much sterile in that area.”

On February 26, 1997, Dr. Grimsbo received his second batch of evidence from Detective Lloyd Herndon of the Everett Police Department, evidence that had already been tested previously by Genex Laboratories. Included was the laundered shirt given to detectives by Carol Clark. As to whether or not Grimsbo would recover DNA from Clark's shirt, the jury was still out.

 

“In the coming weeks,” Judge Richard Thorpe told the over 150 potential jurors crowded into his Everett courtroom, “some of you may be asked to decide whether Mr. Clark should receive the death penalty.”

Each potential juror completed a fifteen-page questionnaire asking detailed information about their knowledge of the case, their families, education, and work experience. “One of the things we need to know,” Judge Thorpe explained, “is how much you know about the case and whether you've formed an idea or opinion about it.”

In preparation for the trial, over eight hundred county residents were summoned for jury duty. Many of those who did not show up in court on the February 27 were previously excused due to hardship.

“We expect to spend the next two to three weeks interviewing and screening the potential jurors, individually and in groups,” explained deputy prosecutor Ron Doersch. “Picking a jury is critical in a death penalty case,” added deputy prosecutor Jo Vanderlee. “It only takes one juror to stand between the defendant and a death sentence.”

The jury selection process launched with the sluggish speed and weary efficiency of Gutenburg's printing press. By the end of the first day, six people had been questioned, and Judge Thorpe dismissed two potential jurors. “Once we hit our stride,” said Thorpe, “things may go more quickly.”

In the Portland laboratory of Dr. Ray Grimsbo, the progress was efficient and significant. “There were sleeping-bag cuttings that had been taken and then sent to me,” recalled Grimsbo. “The typing results obtained from the bloodstain from the sleeping bag were consistent with Roxanne Doll's DNA type.” In fact, test results on the plethora of evidence items indicated DNA consistent with that of Roxanne Doll, and/or the bodily fluids of Richard M. Clark.

“It would be reasonable that the laundered item would have the weakest test results,” said Grimsbo. “If it was laundered, much of the material on there is going to be laundered away, leaving just enough to get weak results, that would be expected.”

Despite its degradation over time, or in the rinse cycle, test results indicated, in Grimsbo's opinion, that Roxanne Doll's blood was on Clark's shirt, and these were equally valid as the results showing the child's saliva on the socks allegedly stuffed into her mouth.

“It was amazing to me,” admitted Detective Herndon, “that Grimsbo got results from the shirt washed in bleach by Carol Clark. The bloodstain on that shirt, once tested, gave results that indicated that her DNA could not be excluded by any scientific process.”

The ongoing process of jury selection, however, excluded several individuals because of their strong feelings against the death penalty. Among those was Margaret Jobe, despite her clear statement that she could abide by the law and make the penalty decision. She did indicate, however, that she didn't think that she could be fair to both sides, despite her best efforts to do so.

More definite in her stance was Jane Schwamberger, who opposed the death penalty for philosophical and religious reasons. “I probably would avoid finding the defendant guilty to avoid having to consider the death penalty at a sentencing phase,” she said.

Prospective juror Scott Koch said that he hoped he could make the decision to impose the death penalty, but he didn't know if he could make that decision.

Daniel Roczynski was another prospective juror who readily admitted that he would have trouble imposing the death penalty and that his reluctance might affect his guilt determination. On being told by the prosecutor that other people had been excused because of their strong feelings about the death penalty, Roczynski stated, “Right now, I think I would be affected to the point where I wouldn't be able to make that kind of decision.”

The court denied defense challenges of a number of prospective jurors who, unlike those individuals previously mentioned, had strong views in favor of the death penalty. Bill Hefley, for example, said that if Clark was proven guilty beyond a reasonable doubt, “he don't deserve leniency.” Hefley affirmed at least ten times that a death sentence would be a foregone conclusion.

Gerald Johnson, in a manner similar to that of Hefley, responded several times that if Richard M. Clark was found guilty of premeditated first-degree murder, he would feel “morally bound” to impose the death penalty. Gertrude Carlson likewise said she would be “inclined or compelled to impose the death penalty” and it would be hard for her to presume that Clark warranted leniency.

“I can be just as impartial as the next person,” said Carlson, but she indicated later that she knew some of the police officer witnesses, and that knowing them would influence her, and that even after hearing the reasons to keep an open mind from the prosecutor, she would still be inclined to vote for the death penalty.

Bessie Baker Thompson, another possible juror, said that if Clark was found guilty, he “deserved the death penalty” and it would be the defense counsel's job to prove that he merited leniency. Thompson said that she didn't know if she could be an impartial juror and presume leniency, or make the prosecution prove the absence of mitigating circumstances.

During his questioning, Adrian Pintler firmly stated his view that if someone killed someone else, his or her life should be taken. “This would save the taxpayers money,” asserted Pintler.

“If the jury determines that Clark is guilty,” Pintler said, “I would vote for the death penalty.” He also admitted that he would not be entirely open to mitigating evidence. “I don't believe that somebody was raised badly as a little child, that gives the right later on in their life to take a life. I don't agree with that philosophy.”

More extreme was Richard Lippincott, a prospective juror who stated numerous times during voir dire that if Richard Clark was proven guilty, then the death penalty should follow automatically. “Mr. Lippincott continued to be confused,” recalled appellant's attorney Suzanne Lee Elliott, “about the two phases of the trial and the state's burden of proof at each phase.”

The defense was forced to use four of its twelve peremptory challenges to excuse Hefley, Pintler, Carlson, and Thompson. In total, the defense used eleven of its twelve possible peremptory challenges. In other words, eleven potential jurors were excused by the defense.

When these challenges were exercised, both the defense and the prosecution were aware of which juror would replace the one removed. Had the defense exercised a twelfth, Lippincott would have been on the jury panel. The defense would have had no remaining peremptory challenge to remove him.

“Because the defense didn't challenge him, Lippincott was the first potential alternate,” explained Elliott. There are three challenges available for alternate jurors. “In effect,” said Elliott, “the defense was able to remove Mr. Lippincott from the jury by not using its final peremptory challenge.”

Over the next few weeks, 114 potential jurors were questioned regarding their views on the death penalty and their prior knowledge of the case. Ninety-seven of the 114 acknowledged hearing about the case in the media or from conversations with other people. Only seventeen people expressly denied any prior knowledge of the case, and only nine people who were not excused for hardship or for their views on the death penalty had not heard of the case through pretrial publicity.

“Clearly,” attorney Suzanne Lee Elliott later commented, “the overwhelming majority of prospective jurors were aware of the case and the publicity surrounding it.” In fact, 84 percent fell into that category, and when the final jury was seated, only one juror expressly disavowed prior knowledge of the case.

“And you folks,” said Judge Thorpe to those not selected to serve, “breathe a sigh of relief again, and you may be excused. And thank you very much for your patience.” The jury and the alternates retired to department jury room #8, and Judge Thorpe turned to the attorneys.

“My understanding,” began deputy prosecutor Doersch, “is the defense may have an objection to the visual/ memory aid that I intend to use in my opening.”

“Yes, that's correct,” said defense attorney Errol Scott. “I want to object [to] not only what I anticipate is the remarks of the prosecutor, but the poster that is going to be used by the prosecutor. The purpose of the opening statement is to inform the jurors in a summary fashion what the evidence will be, but what he intends to present is clearly a closing argument.”

The prosecution's visual display and attendant commentary were objectionable, Scott said, because they were designed to “appeal to the emotion, sympathy, and prejudice of the jurors.

“It seems to me that the court should not allow that,” said the defense. “That is for the final stage of the proceedings, after the jury has heard all the evidence—that's when the prosecution may be able to make those arguments, but not here, not at this time.”

Judge Thorpe pointed to Doersch's elaborate poster display. “Are you objecting to the use of that?” Scott nodded emphatically.

“I do object to the use of that, and I'll object if I believe the prosecutor has overstepped the line in preying upon the jurors' emotions. In looking at that [poster], it's clear that is the prosecutor's intention.”

Thorpe gave Doersch opportunity for response. “I've heard opening statements described as a road map,” Doersch began. “When I take a road map and I unfold it, I see lines; I see all kinds of details, contours, all kinds of things on road maps.”

The deputy prosecutor motioned toward Scott as he continued. “Counsel seeks to restrict the use of the English language to the barest recitation of facts. That's not an opening statement. You might as well have handouts and have a machine spit them out here. I intend to use the English language as I see fit—not to argue, but to paint for the jury a picture of this crime, the investigation, and the results. I am not required to stand up here mouselike and recite facts in the order Mr. Scott wishes.

“This,” said Doersch, referencing his poster, “is a memory aid, this is something that will help me use the language effectively. There is nothing here that is argumentative. I would anticipate objections during my opening statement, but I would also anticipate that they will not be well taken.”

Judge Thorpe studied the poster critically, then gave his decision. “Without some idea of how this amounts to a road map, the defense objection will be sustained. How much of this you can use during the language of your opening statement we will have to see as it goes along, but the opening statement will not be a closing argument. I am not inclined to allow this to be shown to the jury while you are making your opening statement for an hour or so.”

Doersch, displeased, only replied, “Very good.” Scott had another matter of emotional impact from which he wanted the jury shielded—the proposed testimony of Eugene Hillius, witness for the prosecution. Scott intended, he told the court, to object to the anticipated testimony. He wanted the court not to allow “any reference to the things he might testify to mentioned in the prosecution's opening statement.”

The court asked Doersch to explain exactly the content of Hillius's proposed testimony and its relevance. He related that Hillius and Clark, both incarcerated, were watching a television program in which a murder was being committed.

“The murder victim was a young girl,” said Doersch. “During that presentation, Mr. Clark apparently said, ‘Fuck her before you kill her; fuck her before you stab her.' That was not the only remark that Mr. Clark made in Mr. Hillius's presence,” Doersch continued. “One had to do with Mr. Clark telling Mr. Hillius, ‘They got my DNA out of her butt.' This was done on a different occasion, but also in the jail. There is also a conversation in which he indicated his anger at his brother Elza for not lying for him. These three remarks are the ones we would seek to present to the jury. Mr. Clark made these three remarks in the jail, without any pressure of any kind from Mr. Hillius, without Mr. Hillius operating as an agent of anyone.”

Judge Thorpe pondered the situation for a moment; Doersch added further commentary. “They were ill-advised remarks by Mr. Clark,” he said, “but they can't be unrung at this point. They are clearly relevant to the case, and there is no legal reason that I can see, except of course the discretion of this court, to keep them out.”

“When did this occur?” asked Thorpe.

“Sometime in May or June of 1996,” Doersch answered.

“I am not persuaded that his frame of mind fourteen months later,” said the judge, “while he is in jail awaiting trial on a crime that occurred fourteen months earlier is going to be relevant to the trial phase. I'm not ruling at this time that you may not use it, but I am ruling that there will be no mention of it, and the evidence will not be introduced without prior leave of the court.”

“Thank you,” said Doersch, who had nothing at that point about which to be thankful.

“Now, ” Judge Thorpe asked the prosecutor, “you expect your opening statement to be how long?”

“Well,” responded Doersch, “it will be shorter now.”

 

 

“Ladies and gentlemen of the jury,” intoned Judge Thorpe following a fifteen-minute recess, “will you please stand and raise your right hand to be sworn to try the case.”

With the jury duly sworn, the long-awaited trial of Richard Mathew Clark was under way.

“You are not to be sequestered during the trial,” Judge Thorpe informed the jury. “You will take your recesses in the jury deliberation room, and when we recess for the noon period and for the day, please proceed directly off the floor. And when you return, please proceed directly into the jury room, thus avoiding any inadvertent contact with anyone who may be a witness whom you are not able to identify by sight.