Broken Doll (22 page)

George told jurors of the nonstop drinking and drugging he witnessed growing up, so much of it that he thought continual drinking was normal. As for marijuana, “I can remember him [Smith] smoking pot as long as I can remember wondering what it was,” said George Clark II. All of this, he asserted, had a lasting impression on his younger brother.

“When I was married, my ex-wife and I lived down here in Everett. Richard would come over screwed up all the time.” By “screwed up,” George meant “drunk.”

The prosecution, sensitive as anyone to the tragic lifestyle of George, Richard, and their siblings, did not consider it a mitigating factor. “Carol Clark has always been there for Richard, hasn't she? In fact, Carol Clark has always provided a home for Richard whenever he needed one, isn't that right?”

“I don't believe she's ever turned him away,” confirmed George.

“From what you know of Richard's life,” asked Vanderlee, “there was never a point where he was on the streets as a homeless kid because Aunt Carol and the grandparent Clarks were always there to give him a home, isn't that fair to say?”

“I would say he always had a choice to go there,” said George Clark II, “because I don't believe he ever got turned away.”

Jo Vanderlee did not want the jury's attention turned away from the horrid acts committed against little Roxanne Doll by Richard M. Clark. “We are here today about Roxanne Doll,” said Jo Vanderlee, “and we are here about justice. We are here about murder and rape and kidnapping, and the concealment of an atrocity committed upon a child of this community.

“We are here about Richard Clark. Not the Richard Clark that sits there in that white shirt at counsel table, but the Richard Clark who went into a trusted friend's house—someone who trusted him—and took a child from that house, kidnapped that child, raped that child, and murdered that child.

“We are here about justice, justice for Roxanne, justice for Roxanne's family, justice for this community, and we are here about justice for Richard Clark.”

The next comment by Vanderlee may have been over the line: “In this trial, you are the conscience of the community,” she said. “You are the law, and you decide what justice is and what that defendant deserves.

“What Richard Clark deserves is an answer on the verdict form of yes, that he does not merit leniency. The death penalty is reserved for the most serious crimes, and for the most dangerous offenders. You heard the evidence in the trial phase and you know, from your verdict, that the most serious crime has been committed, and that man, ladies and gentlemen, is the most serious, the most dangerous—”

“Objection, Your Honor,” interrupted Bill Jaquette.

“Overruled,” replied Thorpe.

“You have a difficult question ahead of you, a very difficult question,” said Vanderlee to the jury. “That question is, has the state proven to you beyond a reasonable doubt that there are not sufficient mitigating circumstances to merit leniency?”

Vanderlee provided the state's unshakable conviction that no such mitigating circumstances existed to justify a sentence of less than death. “There is nothing about this crime, and there is nothing about this defendant, that merits leniency. Nothing can excuse this crime—not his crummy childhood, not alcohol, and not drugs. There is nothing that can excuse this crime.

“The defense is offering Bob Smith to you as a piñata—a human piñata—something to distract you away from the defendant,” she said, “so that you will look at it and you will say that's really the bad thing. Let the defense take swings at someone who is not here to defend himself and bash Bob Smith, and they'll be looking at Bob Smith and they won't be looking at the defendant.

“I submit to you, ladies and gentlemen, Bob Smith did not rape and murder Roxanne Doll, he did not rape her, he did not kidnap her. The defendant did that, he did that all by himself.

“There were five kids that grew up in those circumstances, five kids who went from Everett to Lake Stevens, to Arlington to Darrington. It was a poor family, poor family that was living in the rural parts of this county, not unlike many, many children who grow up in this county, or grew up in this county during the '70s. And what do you know from hearing George talk or from hearing Carol and from hearing Toni?” she asked rhetorically. “You know that none of those other kids are child murderers or have raped children or are kidnappers.

“Let's talk about this crime for a moment,” she said, and recounted the heinous doings of Richard M. Clark. “This was the premeditated killing of a seven-year-old girl, a little girl who has just learned how to read, to ride a bike, she just learned how to swim. This little girl just had hope in her heart when [she] went to bed that night on March 31, 1995. And she was taken from that bed, never to return to it.”

Focusing again on the all-important issue of premeditation, Vanderlee approached it head-on. “Mr. Clark made three choices that night, three choices. He made the choice to kidnap her; he made the choice to take her in a van and conceal her. Once he even got her out to the van, he could have stopped himself; he could have said, ‘I am not going to take her, I'm just going to put her back in the bedroom.' He didn't do that. He made a second choice; he made the choice to rape her.

“Even after he raped her, he didn't have to leave her in that injured condition. The defendant could have returned Roxanne to the parents' home, to a hospital, he could have even left her on a street somewhere, where someone could have found her. But he didn't do that.

“He didn't show very much mercy. After she was injured from the rape, he stabbed her seven times. It was a slow death, several minutes to half an hour. Whether she died in the back of his van or whether it was on that slope or anywhere in Everett.”

From the time she was dying, said Vanderlee, he made a third choice: “And that choice was not to take her to a hospital. He made a third choice to bury her where he hoped she would never be found. Is there anything about that that could justify a sentence of less than death?

“If you sentence the defendant to life in prison,” Vanderlee said, “the defendant will always have hope, because where there is life, there is hope. Roxanne is not going to get any more hope. The only hope that Roxanne Doll has is the hope for justice.

“The question that you have to answer,” she told the jury, “is this: is there anything about the defendant that justifies a sentence of less than death?”

According to Vanderlee, people do not wind up in the penalty phase of a capital trial because of sheer bad luck or because of coincidence or because of a mean stepfather. They wind up in the penalty phase of a capital murder trial because of choices that they made.

“Richard Clark made choices in his life that got him here,” she said, “like the choices he made in murdering Roxanne Doll. Some people in their lives leave legacies; they have families, they start a business, or they write a book; they leave behind a positive legacy. What is Richard Clark's legacy? His legacy can be summed up in these judgments and sentences that tell you about the crimes he's committed in his life. We know that Richard Clark is a burglar, a thief, a person who recklessly bribes and eludes the police, a person who commits the crime of unlawful imprisonment—tying up little four-year-old Feather Rahier in a garage in Snohomish County, Washington.

“Let's talk a little bit about his childhood,” said Vanderlee. “He had a crummy childhood and he offers that to you as a mitigating circumstance. George Clark has a job. George Clark is dealing with his alcohol and drug abuse problems. He is in treatment. The girls have families, the girls have jobs. Those other four kids grew up in the exact same circumstances. I guess you could call it the phenomena of parallel lives, they all grew up in the same situation, and they did not turn out like Richard Clark, because Richard Clark chose his path. In truth, he chose to put himself in the position that he is in today.

“Do not blame Bob Smith,” she said. “He's a bad guy, perhaps, for abusing his stepchildren, but Bob Smith cannot be blamed for this crime. It is sad that Kathy Smith died. It's always sad when a parent dies. There is no question about that. But consider that many children unfortunately have a parent who dies.

“A parent passes away, and the child turns to other relatives or perhaps the child turns to his church or some other thing in their life that they can rely on. This defendant, when his mother died, had a caring extended family right here in this county that he could rely on.

“So, when he is trying to say that [his] childhood should be an excuse for this crime, don't buy it, because his childhood, although not the greatest, was certainly one that had its support systems in it.

“I would like to talk for a second or two about these photographs,” she said, approaching the defense exhibits. “There was some talk about Richard being beaten, about money being short. And that's probably all true. But when you look at these photographs, these photographs of a happy, smiling child, this happy kid with his Easter bunny, there is George Clark hugging Richard.”

She showed the jury a picture of Richard Clark playing with some toys. “Does he look like he is really that deprived at this point in his life? This child,” she said, referring to Clark, “got to grow up; Roxanne is not going to get to grow up. And this child,” Vanderlee said, referencing the photo of a cherubic Richard Clark, “is not the person that you are here to decide whether he merits leniency or not. The person you are here to sentence is that twenty-eight-year-old man over there, not that eight-year-old kid in those pictures.”

Vanderlee reminded jurors that Clark was twenty-six when he committed the crime. “He had been away from Bob Smith for twelve years. He cannot blame someone for this crime when the crime happened twelve years after that person had completely passed out of his life.”

Lest jurors conclude that Clark's horrid crime was attributable to his brain being under the influence of alcohol and methamphetamines, Vanderlee pointed out that Clark indulged in that stimulant primarily after committing the crime. “And the fact is,” she continued, “that Richard Clark does not leave living witnesses to this crime. There is a lesson here that he did not leave a living witness. He took this kid and he did not want her to tell about what happened to her, so to protect his own self he killed her.

“There is no justification for this crime,” Vanderlee asserted emphatically, “that would merit this defendant receiving a penalty of less than death.”

There is a contention, held by millions of individuals, and the majority of nations in the world, that if a society uses capital punishment, the society is committing cold-blooded, premeditated murder. The prosecution sought to counter such contention by stating, “The death penalty is the law in this state, something that is in fact the law of the land.”

“Objection, Your Honor,” said Jaquette, “that is not accurate.” Judge Thorpe agreed with Jaquette, and the objection was sustained.

Vanderlee, without missing a beat, continued: “Society does not make itself into a beast through using capital punishment. To argue that,” she said, “would be to say that when society imprisons someone for burglary, that it's unlawful imprisonment, or when the state exacts a fine on someone, it's thievery.”

The prosecution then addressed the topic of mercy, saying, “Mercy can be a mitigating circumstance. If you, as a jury, decide that mercy is a mitigating circumstance in this case, be sure that you are not applying that arbitrarily and be sure that you are considering the mercy to be appropriately given, if that's what you decide to do.

“It's been said that some people, because of the crimes they commit, because of the atrocities they commit, do not belong on this earth. I submit to you that this might just be such a case. And when the defense argues to you that Richard Clark deserves mercy, keep in mind the mercy he showed to Roxanne Doll on March 31, 1995, when the defendant had Roxanne Doll under his complete control, alone in that van and on that hillside. If you show this defendant the same mercy that he showed Roxanne Doll, it will be a just verdict.”

After prosecutor Jo Vanderlee sat down, Judge Thorpe said, “We will now have closing argument for the defendant, Mr. Jaquette.”

“Thank you, Your Honor,” said Bill Jaquette, and cut immediately to the unavoidable. “By your verdict in this case,” he told the jury, “you have convicted Richard Clark of the most serious crime that exists under the laws of the state of Washington, aggravated murder in the first degree. Having done that, the law presumes what the sentence will be, the presumed sentence in this case, for someone who is convicted of that serious offense, is that they serve the rest of their life in prison. Richard Clark will be taken from here and taken to prison behind cement walls and steel bars, where every day of his life will be controlled by those who supervise him, what he eats, when the lights are turned out at night, everything will be controlled. That goes on today, tomorrow, the next day, and the next day, every day of the rest of his life.

“Richard Clark will not get out. He will not be released to furlough. He will not get to go visit a sick or dying relative. He will never go to a ball game or vote, go to a community activity, walk on the beach, or see a mountain. That's the sentence that is presumed Richard Clark deserves.”

He then explained the circumstances under which the jury could order Clark to be killed. “Only if in those circumstances where you, the jury, decide that this crime is not just aggravated murder in the first degree, but the worst of the worst aggravated murder, can you bring back a verdict of yes on the verdict form and Richard Clark would be sentenced to death.”

The jury must ask itself, he reminded them, “keeping in mind the crime of which the defendant has been found guilty, has the state proven beyond a reasonable doubt that there are not sufficient mitigating circumstances to merit leniency?

“That first sentence of that first phrase in the sentence is an important one, ‘Having in mind the crime of which the defendant has been found guilty.'

“Having in mind the crime is not having in mind the crime and the cost that would be to you and I as taxpayers to support Richard Clark in prison for the rest of his life,” explained Jaquette. “This is clearly a question of balancing this crime against the potential for mitigating circumstances. Other factors, like the fact that it's going to cost us money, are not the facts that you, the jury, are invited by the law to consider.”

Of more concern to Jaquette than finances was the possibility that the jury could sentence Clark to death based on crimes other than the one for which they convicted him. “You have heard evidence about Richard Clark's prior convictions; you are going to be able to see the certified legal documents relating to those convictions. The sentence doesn't say, ‘Having in mind the crime of which Richard Clark was found guilty and all of the other crimes.' You are not weighing whether he deserves to be executed because of his prior convictions. His prior convictions are proper consideration for you, but you are not punishing him for those things.

“He has paid the price for those previous crimes,” said Jaquette. “You are not to put them into this; you are not to put them alongside of the current crime.

“Instruction number four tells you that the defendant is presumed to merit leniency, which would result in a sentence of life in prison without possibility of parole.” Jaquette restated that the presumption of merited leniency, as with the presumption of innocence, must be overcome by the evidence beyond a reasonable doubt.

The scales of justice were tilted by intent toward innocence and leniency. Only if the state met its burden of proving to the contrary would the tilt be toward guilt.

“The state's burden,” said Jaquette, “is to prove this case beyond a reasonable doubt. You hear a lot of talk about ‘beyond a reasonable doubt.' You applied that principle in reaching a verdict. But I would like to say a couple things about it. I would suggest that reasonable doubt is a commonsense concept. It's something you do use in your everyday life, and it's something that I'm sure that you used in that same fashion in reaching your verdict in this case.”

The erudite attorney again quoted the definition of reasonable doubt regarding mitigation. “Only if... you have an abiding belief that there are not sufficient mitigating circumstances to merit leniency are you satisfied beyond a reasonable doubt.

“I want to focus on that word, ‘abiding.' The word ‘abiding' means continuing without change, enduring and lasting—a belief that will not change—a belief that will endure for the rest of your life.”

In the trial phase, a unanimous verdict was required. All twelve jurors had to agree on the answer to a question of fact: “Was there proof, beyond a reasonable doubt, that Richard Clark is the person who committed these offenses?”

Now, however, the jury was not asked to agree unanimously on the matter of sufficiency. It was a measure that appealed to one's individual and collective conscience. “Your individual moral sensibilities developed over your experience as a child,” explained, “things given to you by your parents, things you learned on your own, learned at school, and things that happened to you from the time you became adults until now.”

These moral sensibilities were the tools that jurors would use in measuring question of sufficiency. “You can't capture an individual's moral sensibilities by slogans,” asserted the defense. “But the way you think about those slogans has in some way to illuminate what the moral sensibility is. We talked about, or I presented the notion of, ‘an eye for an eye.' ‘An eye for an eye,' in many respects, is an attractive moral principle, certainly feels good in a situation like this, where we have a young child who was taken and a family who suffers so much. It is certainly an understandable response. This is not an adequate principle; it's not a sufficient principle. It's not a sufficient principle, because when you think about what ‘an eye for an eye' means, you realize that it doesn't really give compensation.”

When you have given the life for a life, said Jaquette, “what has the person who has been wronged received? Well, they haven't got their daughter back; they haven't been put whole.”

An “eye for an eye” is not reflected in our American system of justice. In fact, the first instruction to the jury stated that they were not to respond to, or be influenced by, passion, prejudice, or sympathy.

“Saying about Richard Clark that he's somebody who doesn't deserve to be on this earth is not treating a person with intrinsic value.”

The question jurors faced, of course, was one of sufficiency of mitigating circumstances to merit leniency. “That term ‘leniency' is an important one and one that you need to be careful of,” said Jaquette, “because in some context it doesn't seem like Richard Clark could possibly deserve leniency. But you remember, we are not talking about leniency of a teacher whose student has failed to turn in the term paper on time. What we are talking about is a question of whether the death penalty should be imposed or whether that second most serious punishment, life in prison without the possibility of parole, should be imposed.”

Richard Clark and several other adult participants in this tragic story shared an affinity for alcohol and other lesser intoxicants. The defense would never offer alcoholism and drug addiction as an excuse, but it was an issue for consideration in sentencing.

“We are beyond the question that excuses and justification,” acknowledged Jaquette. “We are not asking you to say this is an excuse or a justification for what he did. Richard Clark had a fifth of whiskey and a twelve-pack of beer, which they started in the afternoon and they just drank and drank and drank and drank the rest of the day. Mr. Clark was described as being on his feet, but it's still a ridiculous amount of alcohol. Both alcohol and drugs were something that his parents used, something that he knew about, something that he began to use, and something that took over his life.”

People who are not alcoholic or drug addicted think in terms of “choice.” They are aware of choosing to drink or not to drink, to use or not to use. For people such as Richard Clark, argued Jaquette, they no longer perceive choices, only wants and needs. “Richard Clark has to have alcohol,” Jaquette asserted. “It's not something that he chooses anymore.

“Yeah, there was some choices back there that he could have made, but it's not a choice that he can make anymore. And what does alcohol mean? We are not suggesting here that Richard Clark was so drunk at the time of the offense that he didn't know what he was doing. Mr. Scott did not make that argument.

“When alcohol is used as an anesthesia to any situation that is stressful,” he asserted, “any situation that causes emotion, you don' t learn how to control your emotions, don't learn how to deal with your feelings.... There is no control. You cannot turn your emotions to the positive moral force necessary to get along in the world. You cannot develop the moral sensitivity needed to make a reasoned decision, to make the same kind of decision on the night of March thirty-first that the rest of us can. Again, I am not saying this is an excuse. This is not a justification, it's an explanation, and I would urge you to find it a mitigating circumstance.

“Neglect, abuse, and tragedy,” delineated Jaquette. “Richard Clark was subject to all of these. I am not going to detail them, and I am not going to say that he suffered the worst childhood on the planet. I am not going to tell you that his brother and sisters did not suffer similar abuse. But each person is unique, each person comes upon these things at a particular time in their life.

“George Clark, Richard's brother, was affected by the beatings. He cried out; he could not believe that Richard didn't. Richard just took it. Why? Well, there is four years' difference. It's a different situation, they are different people, and they are affected differently. So you can't say, well, just assume that it doesn't mean anything, because Richard's brothers and sisters got through it. It does mean something,” he insisted, “it does have an effect on one's life. You cannot say that what happened to Richard Clark does not have an effect. Again, this is not an excuse, not a justification for what he did. It is simply an explanation, it is an explanation which is a mitigating circumstance.

“When people are subjected to that kind of abuse,” insisted Jaquette, “that kind of neglect and that kind of a tragedy, they avoid reaching out to other people. They avoid the experiences that bring them so much pain. Why do I feel for somebody when I realize the person I feel most about dies and leaves me alone? Why do I want to reach out for people when although there is family available to take care of me, there is a place to live, there is nobody that's going to take up and parent Richard?

“Nobody that says, ‘Richard, you get in here, you get to school, and you go to school every day, because I say so. I'm your new parent. I'm taking over and you do it.'

“‘Well, he didn't want to go to school, so we just didn't have room for him, because it was kind of inconvenient because of all the people around.' That's the message you get, that's the message you learn, and Richard learned it and he essentially became a creature of the street. Without that kind of experience, with the touching other people, you lose the ability to develop the moral sensibility that is necessary to make the kind of decision that Richard Clark should have made on the night of March thirty-first, two years ago.

“You've heard the phrase ‘It takes a village to raise a child.' That phrase really kind of simulates a political discussion, a debate of people who say, ‘Well, it's the responsibility of our community to do something to raise children.' Other people say, ‘No, this is a family responsibility. ' I think the fact that the debate exists, tends to show you what you must all accept, which is ‘We are what we are because of things that are beyond our control.'

“Our culture is filled with homicides,” Jaquette reminded the jury, “In the news that we get, homicides with multiple deaths. I'm sure each of you can think of people whom you read about in the paper who were charged with and convicted of terrible killings. We have a trial going on in Denver about the Oklahoma City bombing, which I can' t even remember how many people died in that. This is not a multiple death; it's the death of a child—it's horrible, but it's not a multiple death.

“Second of all,” he said, “there is no evidence that there was any torture in this case. It is clear that death occurred, according to Dr. Kiesel, probably the same day that the child was taken. There was no period of captivity where the child was kept, and any kind of acts repeated. You got the evidence; you know where Richard Clark practically was from beginning to end. You know that couldn't have happened. This had to happen in a very short period of time. And again, it's a terrible thing, but again, measured against the various shades of black, I would suggest that these facts mitigate this about this crime.”

The death penalty is not something Clark would choose either, and it certainly would impact more than Richard Clark. “The death penalty, unlike war or self-defense, is the only one of these things that actually has as its objective the taking of a life—war is about taking land; self-defense is about preserving one's own life.

“The death penalty has its greatest effect upon the person who would be executed. But it has an effect on other people too. It has an effect upon the family of the people who are executed. The family of the accused who didn't commit any offense will suffer the anguish and the anticipation of the execution itself, and they'll suffer the loss when the execution is done,” Jaquette said convincingly. “Even the officials of the Department of Corrections are affected by the death penalty, because they are put in the position of actually bringing about the death of another human being.