Broken Doll (20 page)

Richard Clark's defense team was not about to create a fantastic scenario; they were about to push a boulder up a hill. In essence, the defense was fighting two battles at once. While defending the law, and the presumption of innocence that is so imperative to American justice, the defense had to also argue that even if their client did commit these acts, they were not premeditated.

Clark's primary defense was alibi. Through cross-examination of the state's witnesses, Clark sought to establish that (a) Doll-Iffrig saw Roxanne in bed after midnight on April 1, and (b) Clark was seen at so many different locations between 9:30
P.M.
on March 31 and 1:00
A.M.
on April 1 that he did not have time to commit the crime. The alternative theory was that the evidence presented by the prosecution was insufficient to establish premeditation.

“Let me say a few things before I get started,” said defense attorney William Jaquette. He read his well-crafted closing argument instead of speaking from notes. “I apologize for not being more extemporaneous in this argument when it appears that I'm reading this. The reason is because I want to be precise in what I say, and I want to come to the point.

“I want to present to you the most thoughtful closing argument that I can. A trial such as this should be a search for truth, an attempt to secure justice under the law. We are advocates for Mr. Clark,” he said, “and have attempted to vigorously represent him and present all the evidence and the facts to you that we believe are helpful in this case. The court has told that you are the judges of the facts.

“No one can tell you, individually or collectively, what to think or how to vote in this case,” he reminded the jury, “because it is your conscience and impartial application of the law that will secure justice in a case such as this. Emotions run high, even two years after Roxanne's death. Remember, the law does not favor either a guilty or not guilty verdict.”

Gail Doll's original statement to police that Roxanne was in bed when she returned from the theater should, Jaquette insisted, be taken as an unalterable fact because she was sober, and it makes sense that she would check on her children's safety in a smoke-filled house.

Richard Clark could not have kidnapped Roxanne Doll, insisted Jaquette, because Gail returned home at 12:05 and Richard was still at his aunt Carol's house until 12:45—a testimony that remained unchallenged.

None of the alibi witnesses, argued Jaquette, had a motive to help Richard Clark. All of them were deeply affected by the kidnapping, and none of them were strong advocates for Clark once he was charged with the crime, including his own family.

The defense then countered the prosecution's assertion that Clark's frantic movements that night were indicative of him searching for an alibi. The best way to establish an alibi, Jaquette told the jury, is to go to one place and stay there so you have witnesses. That is how one establishes an alibi, and preferably with people who are sober. Traveling from place to place in purposed search of alibi simply didn't make sense.

The most important aspect of Clark's alibi, according to Jaquette, was the information obtained by police investigators on the whereabouts of Richard Clark on the night of March 31st. None of the witnesses changed their version of events from their first statements made two years previous. The witnesses who made statements about the whereabouts of Richard Clark on that night did not know what facts would be helpful to him, or what facts would incriminate him. “They told the truth,” said Jaquette. If what they said was true, he told the jury, Richard Clark could not have committed the crime.

The prosecution argued that Carol Clark was lying about the time Richard was home between 12:05 and 12:45, but Jaquette noted that all the other evidence of Richard's whereabouts that night was consistent with her testimony. More importantly, the defense pointed out, if she were lying about the time, why would she later call police and turn over some of the most damaging evidence in the case, the bloody shirt?

“She was not helping Richard when she turned over the shirt,” said Jaquette, “and she did not lie for him when she told police where he was that night.”

The erudite defense attorney then showed the jury a large illustration demonstrating what he termed the “consistency of the witnesses' time line statements.” On the left side of the chart was the time; the middle showed location with the time it would take to move from location to location, and the far right indicated the witness who testified to this timeline. Jaquette, in painstaking detail, did his utmost to demonstrate that the times were not only accurate, but precluded that Richard Clark could not have committed the crime.

“I want to break the time period that night into two different parts,” said Jaquette. “First, before midnight, and second, after midnight.”

Defense attorney Jaquette proceeded to demonstrate that, according to his interpretation of events, Clark could not have committed the crime after midnight. “Richard is placed at his aunt Carol's at twelve-oh-five, and Gail Doll arrived home about twelve-oh-five. If Gail Doll arrived at home at midnight and saw two heads in the bed, Richard Clark could not have abducted Roxanne Doll, because we know where he was after midnight until six-thirty in the morning.”

This same timeline, argued Jaquette, demonstrated the improbability of Richard Clark abducting Roxanne Doll prior to 12:05. There was, according to the defense, no time or opportunity for their client to abduct, rape, murder, and discard the body of Roxanne Doll.

Time was also significant in the defense's argument against premeditation. “The law requires some time,” stated Jaquette, “long or short, in which a design to kill is deliberately formed.”

The general thrust of the prosecution's argument was that Roxanne Doll was kidnapped for the purpose of rape and the abductor knew she would reveal the crime, and therefore she was killed. This indicated deliberation from the very outset to take her life—that the murder was conceived as part of the plan from the outset. The defense, however, argued that premeditation needs to be of sufficient length that there is doubt that it was of a nature that justifies a finding of first degree murder.

“The known facts of the death of Roxanne Doll,” said Jaquette, “do not prove that her death was premeditated.”

While the prosecution would argue that the time it took to inflict the wounds constituted sufficient premeditation to constitute first degree murder, the defense insisted that “intent to kill is not the same as premeditation.”

The intent to kill, acted upon without premeditation, is the definition of second-degree murder. Even if the jury determined that Clark was responsible for the three crimes of kidnapping, rape, and murder, they could find him guilty of second-degree murder. Should they reach that conclusion, Richard Clark would not face the death penalty.

“You can
not
infer from the facts proven to you that the killing was premeditated,” insisted the attorney. “The prosecution may, of course, claim that Mr. Clark should not benefit from having committed a crime, which he can conceal, or for which his whereabouts were unknown. That does not eliminate the prosecution's burden of proving all the necessary elements of the crime.”

Contemplating the defense's argument years later, investigative crime journalist Jeff Reynolds found the presentation oddly compelling. “William Jaquette insisted that Clark didn't do it, and simultaneously argued that Clark didn't do it with premeditation. I must admire him for covering every possible angle to give his client the best defense, but the subtext was ‘Let's not confuse the fact that my client is probably guilty as hell with the sanctity of the law.'”

Jurors were reminded that Clark was intoxicated on both alcohol and methamphetamines, and that he consumed as much as Jimmy Miller, possibly more. He drank heavily prior to picking up Miller, and Jimmy Miller blacked out at four or five in the aftemoon. Tim Iffrig, Jaquette pointed out, was also intoxicated.

Hence, Jaquette reasoned, many “facts” of the case remained unclear. Not knowing when or where, or under what exact circumstances Roxanne Doll met her end, Jaquette told the jury, made premeditation impossible to prove.

“I apologize for all the time I have taken and let me make a few remarks before I close,” he said. “Richard Clark was not trying to get Elza Clark to lie for him about deer blood. We have uncontradicted evidence that there was deer blood in Toni Clark's house. We have uncontradicted evidence that there was deer blood in Richard Clark's van. We don't have any proof that it was spilled, but it certainly was there. So when Richard Clark told Elza to tell the police, ‘If there is any blood found in my van, it was from the deer,' what he was telling was the truth. And what happened was Elza Clark was so concerned about being arrested for poaching, he could not bring himself to back up Richard's story, which was true.

“Richard Clark never asked Vicki Smith to lie for him,” asserted the defense. “He asked her if she told the police that she was with him that night and she almost indignantly replied no. And the prosecution suggests, well, with someone for a long period of time. Well, what Richard was really asking her, when she had seen the police, that she had seen Richard that night.”

Tim Iffrig found these explanations astonishingly farfetched. “Did he really think the jury was gonna buy that? I mean, c'mon. The guy was doing his job, but man—that was really stretching it.”

The jury wasn't buying it. In the words of one wag, they were not even renting it or taking it for a test drive. Jaquette did everything within his oratory powers to raise reasonable doubt in jurors' minds. Three quick weeks after it began, the trial phase was over.

 

 

“Counsel,” said Judge Thorpe, “we have been advised that the jury has reached a verdict. Are there any preliminary matters before we bring in the jury?”

“No, sir,” replied both Ron Doersch and Errol Scott.

“Very well. While we are doing that, I want to compliment counsel on the good job they did in trying this case. I've had a lot of comments about how quickly the trial went. And on reflection, I attribute that to the degree of work, preparation, anticipation, and talent of the attorneys who are involved in it. And you are all to be commended for trying the case very well and very efficiently.”

Judge Thorpe then turned toward the defendant. “And Mr. Clark, I can assure you that you had the best legal talent that I've seen defending you.”

Whether or not Richard Mathew Clark appreciated Jaquette and Scott's efforts on his behalf remains unknown; the verdict, however, was widely publicized.

Once the jury was seated, Judge Thorpe addressed the foreperson. “Sir, has the jury reached a verdict?”

Richard Mathew Clark was convicted of aggravated first degree murder for the stabbing and strangulation death of seven-year-old Roxanne Doll. The aggravating circumstances were that the murder was committed: (1) in the course of or furtherance of Kidnapping in the First Degree and Rape in the First Degree, and (2) to conceal the identity of the person committing the crime.

There was no delay between the jury's verdict and the beginning of the penalty phase. It was now a life or death battle.

Prosecutor Ronald Doersch began the penalty phase with an unexpected and disturbing entreaty. “I received a request from correction staff,” he told Judge Thorpe prior to the jury entering the courtroom, “that in light of the defendant's conviction, he should remain shackled for the balance of the proceedings.”

William Jaquette sighed; Errol Scott shook his head.

Each charge was answered with a guilty verdict, and each juror was individually polled to ascertain the validity of the verdict. There was no doubt. Richard M. Clark was guilty, guilty, and guilty.

“What do you do with a guilty child murderer and rapist?” asked Lloyd Herndon rhetorically. “In Washington State, you have a special sentencing phase to determine if he should spend life in person, or be executed. Richard Mathew Clark was found guilty of all charges—first-degree kidnapping, first-degree rape, and first -degree aggravated murder. There was no delay between the jury's verdict and the beginning of the penalty phase.”

It was now a life-or-death battle. Prosecutor Ronald Doersch began the penalty phase with an unexpected and disturbing entreaty. “I received a request from correction staff,” he told Judge Thorpe prior to the jury entering the courtroom, “that in light of the defendant's conviction, he should remain shackled for the balance of the proceedings.”

William Jaquette sighed; Errol Scott shook his head.

“I bring this to the attention of the court,” Doersch said, “because they do have a legitimate security concern.”

“Okay,” Jaquette responded with a tinge of cynicism, “we better hear it.”

“You just did,” retorted Doersch.

“By shackles,” asked the judge, “do you mean leg shackles?”

“Leather restraints,” explained Jo Vanderlee.

“You plan on having leather restraints on his wrists?” asked Thorpe.

Before Vanderlee could answer, the court custodial officer quickly clarified the matter. “Just the legs, Your Honor.”

“Well, we oppose that,” stated Bill Jaquette firmly. “They need some particularized concern as to why it should be done, to overcome the presumption that it shouldn't be done. Mr. Clark has the same interests now,” he said, “as he had at trial, which was to present himself to the jury in a fashion that would be favorable to him. And I think that is a factor that I'm sure he is considering as he considers his personal behavior in the courtroom. I mean, he sat through the whole thing so far, without demonstrating any efforts to escape or do anything, and therefore I think he has demonstrated over time his willingness and ability to sit calmly here to observe and participate in the proceedings.”

“You said that there is a presumption that he
not
be restrained,” commented Judge Thorpe, his inflection indicating an offer of proof should be forthcoming from the defense.

Jaquette brought up a previous discussion regarding restraints during the trial phase—a discussion Thorpe perfectly recalled. “I thought that had to do with the impact that it might have on the jury. I can understand that,” said the judge, “but the defendant is no longer presumed innocent. He has now been convicted. And as long as there is no impact on the jury by the restraints, their being leather, they are quiet enough that they wouldn't be heard by the jury and they won't be seen by the jury, I don't see any prejudice to him.

“Well, the right is one that comes out of ancient English common law, and the principle is that a man should not have to appear before the tribunal in chains. I think there needs to be some findings by the court to justify it.”

“Well,” countered Doersch, “Mr. Shawn Wells was sentenced this morning on assault in the third degree, and at that point, he was in shackles. He had presumably been found guilty by plea or some motion before the court, yet he was in shackles. Regardless of how uncomfortable it may be for Mr. Clark at this point, he has indeed been found guilty of the crimes charged. The risk is great,” Doersch asserted, “despite the fact that he has not done anything up until now. Now he faces the certain prospect of life without possibility of parole and possibly death.”

“Yeah,” agreed Judge Thorpe, “I think that's a sufficient circumstance by itself to warrant shackles, leather restraints.”

“I understand the court's ruling,” said Jaquette. He understood it, but he certainly didn't like it. He also didn't care for the planned victim impact statement that Gail Doll would read to the jury, and he wanted to know exactly what use the prosecution was going to make of Toni Clark, current wife of George Clark Sr., as a rebuttal witness.

“We are in a particularly difficult spot in the penalty phase,” said Jaquette, “because the issue of what can be introduced in rebuttal is an important matter because of the restrictions that exist. As a strategic matter, we don't want to open doors that would create evidence that's worse than what would happen if we didn't open that door. We would like to be able to make reasoned decisions on what to say in relation to what doors might be opened.” What Jaquette wanted was Thorpe to rule on what the prosecution could, and could not, use as rebuttal arguments.

Thorpe merely ascertained from Jo Vanderlee that she would assuredly provide the defense with what she anticipated using as a rebuttal to the defense's evidence of mitigating circumstances. “I can have that by one-thirty,” promised Vanderlee.

“That would be helpful, please,” said the judge. He then did his best to deal with each one of the defense's new motions in orderly, efficient progression. “Mr. Jaquette's motions are pretty straightforward,” he said. “Any objections to the first one?”

“Yes, Your Honor,” replied Vanderlee. “There is no objection to the second and third, but to the first one, I would object. I mean, the defendant's criminal record is one of the aggravating circumstances that the state is permitted to put forth as evidence in front of the jury in the penalty phase.”

Jaquette quickly agreed with his opponent and clarified the motion. “The motion isn't to exclude the record of criminal convictions, the motion is to prohibit the facts associated with those cases.” In other words, the defense wanted assurance that the prosecution would not overstep the bounds of reciting Clark's previous judgments and sentences and go into details of his previous crimes.

“What convictions are we talking about?” asked Thorpe. Vanderlee had no difficulty reciting specifics.

“Specifically, what I would be trying to get in front of the jury for most of Mr. Clark's convictions is the information and the judgment and sentence. But,” Vanderlee emphasized, “for the 1988 unlawful-imprisonment charge, I would be seeking to admit testimony from Detective Berglund and Officer Snyder. You want to know what the defendant's prior criminal history consists of?”

“Yes, please,” said the judge.

“He's got an unlawful-imprisonment conviction; found guilty January 12, 1990, taking a motor vehicle without permission, and a second-degree burglary, sentenced January 18, 1990; taking a motor vehicle and eluding, sentenced January 22, 1992. And taking a motor vehicle without permission, sentenced September 17, 1992. He also has,” she continued, “a juvenile conviction for fourth-degree assault, reduced from a second-degree assault. And he has two third-degree theft convictions that are obviously misdemeanors.”

Vanderlee then presented her reasoning on delving into details of the Feather Rahier case. She argued that there was no law in Washington State that holds that underlying facts of previous convictions should not be admitted.

Jaquette was virtually drop-jawed. “The penalty phase has to be focused on mitigation. The one mitigating circumstance that is permitted [to the prosecution] is a record of prior convictions. We are way, way, way beyond the record of prior convictions if we are getting into all these assorted facts and details. I mean,” he said, almost exasperated, “what is it that the prosecuting attorney is now going to be permitted to argue to the jury? Is it going to be able to argue that because Mr. Clark has a record of prior convictions that he is therefore someone who is worthy to be executed? Or are they going to say [about the Feather Rahier case], ‘Oh, look, here's another case just like this one, only he didn't quite get so far, and therefore we got to be sure.... That is not what they get to do. That is beyond proper argument. . . .”

“Your Honor,” countered Vanderlee, “we are not talking about dumping garbage here in terms of criminal history; we are talking about reliable information contained in police reports. . . .”

Judge Thorpe didn't see anything in the law restricting the plaintiff from putting on anything other than judgment and sentence. “So I will allow the testimony about the age of the child and that she was a neighbor, the judgment and sentence, and the police report.”

William Jaquette was almost beside himself with incredulity. “Your Honor, just a final dying gasp on this whole issue,” he said, pointing out that case law clearly indicated that evidence to be presented relates to mitigating factors only. “This is not a mitigating factor, I can assure you.”

Judge Thorpe believed it was his discretion as sentencing judge to allow the jury to hear details of Clark's 1988 conviction, including proposed testimony from Feather Rahier, the victim herself.

Feather, of course, had other ideas that included running away from home rather than participate in such courtroom shenanigans. Her motivation wasn't case law, but personal emotional pain. Indeed, it was the topic of pain and deprivation, both emotional and physical, that the defense would present as their first and most powerful mitigating circumstance.

Jaquette sat down at the defense table and let loose a long sigh. His odds of saving his client's life in this Snohomish Country courtroom were not worth a wise man's wager. It was his firm and unalterable conviction that allowing the prosecution to parade details of the Rahier incident for the jury's consideration was both a judicial error and prelude to the death sentence for Richard M. Clark—a sentence resultant from prejudice and emotion. William Jaquette held firm to his vow: give every client the best defense under the law. After all, it was the law that he defended, not the alleged act of the defendant. He would do everything possible to reduce the emotional aspects that could interfere with the jury's sober consideration of his arguments.

“We request,” said Jaquette, “that the state be prohibited from introducing at any time during the penalty phase any in-life photographs of Roxanne Doll.”

“Your Honor,” said Jo Vanderlee, “I would point out to the court that the defense is admitting fourteen photographs of a cherubic-looking lad in mitigation, so I would submit what is appropriate for the defense would be appropriate for the state in this case.”

“We obviously object,” said Jaquette, and he argued that the in-life photos of young Roxanne were not appropriate—they were not required to prove the victim's identity, nor did they relate to any mitigating factor. “There is no basis to suggest that the state gets to put on a show here to show a bunch of pictures of the victim, because the pictures of the victim don't go to the question of victim impact, or the impact of the death of the child upon the family.”

Vanderlee countered his comments by insisting that the photos illustrated Gail Doll's proposed victim impact statement. Doll's slightly truncated testimonial would form part of the prosecution's presentation. The defense, however, believed that Doll's statement should be saved until sentencing. “Your Honor, I am not denying that we are swimming up a pretty strong stream in that, because as a general proposition, the court has ruled that this type of evidence is admissible because of the Eighty-fourth Amendment to the Washington Constitution, which is essentially the victim's rights amendment. Again, it's our position generally that it is excludable, because it is something that should be heard by the court at the time that the sentence is imposed. Beyond that, I am of the opinion, and would urge the court, that the court has to take it in the context of the particular case. In other words, the state doesn't get to put on any victim impact testimony. I think it has to be deemed to be relevant and its probative value outweigh its prejudicial effect.”

This case, Jaquette argued, had some unique factors to it. “The unique factor that I would point to is the fact that this particular offense had tremendous community impact,” he said. “We moved for a change of venue, because of the impact that this case had upon the news and, in turn, the impact that all the news presentations had on the people in the community.

“Many people who were interviewed as possible jurors,” he reminded Thorpe, “indicated that they had read about and seen it on television, read about it in the newspaper. A number of people were excused because they just couldn't get beyond that. In fact, we have one juror on the panel today who herself admitted at one point she read the newspapers and concluded that the defendant was guilty. So I think what we have
is
a situation where the impact, or the potential for abuse by victim impact, abuse to the question that's before the jury now, is quite high. Therefore, we generally move to exclude all victim impact statements and exhibits.”

Judge Thorpe did not concur completely with either Jaquette or Vanderlee, and ruled that “some victim impact statement is permissible.” One in-life photo of Roxanne Doll was to be selected to share with the jurors.

Prior to the jury being seated, Jaquette and Vanderlee skirmished over a few more important issues: the state wanted excluded from the mitigation/sentencing phase any testimony by Richard Clark's relatives in which they express their desire to have Richard Clark live because they love him.

“There is a federal case, Your Honor,” said Jo Vanderlee, “that indicates it's improper for the defendant's relatives to get on the witness stand and say that they love the defendant, and in effect that they don't want him to be put to death. It's not a fact about the defendant, because most, if not all, relatives love their relatives regardless of [the] worth of that person, and it's not a fact about the offense. So it's not a mitigating circumstance, period, in
Coleman v. Saffle,
which I cited in my brief is authority for that position.”