Broken Doll (23 page)

“This case does not have the malignant premeditation that the worst of the worst would have,” alleged the defense. “Mr. Doersch, in his closing arguments, told you that this was an act of opportunism. It had to be an act of opportunism. Mr. Clark had no idea that Tim Iffrig was going to fall asleep on the night of March thirty-first. It created an opportunity. It was something that occurred on the spur of the moment. An opportunity arose and he took it. As Mr. Doersch described it, this was a stupid crime; it was stupid in its inception; it was stupid in its being carried out. Mr. Doersch offered as proof that there was premeditation because there were multiple stab wounds—that even after the first blow, there was time to think before making the second blow—but is this the worst of the worst?”

William Jaquette answered his own question, saying, “The worst of the worst is a crime that's premeditated, where the consequences are thought over carefully ahead of time and affirmed. Where the Oklahoma City bomber thinks about what he is going to do, purchases the nitrate fertilizer, purchases the diesel fuel, rents the truck, brings it into the vicinity of the building, the federal building, at a time that he knows there are the most people present. That's the kind of malignancy that makes the crime the worst of the worst.

“This is a stupid crime, this is an opportunist crime, and this is a crime where there is no evidence where there was some kind of plan as there was in Oklahoma City. It was developed as it went along, and that doesn't demonstrate the kind of malignancy, which is the worst of the worst.”

Having hammered rational proofs and exercises in comparative “worseness,” Jaquette next attempted prying mercy from the jury's collective heart. “Finally there is the question of mercy. A mitigating circumstance is something that in fairness or in mercy justifies a sentence less than death. There are two things we are talking about: What's just and fair on one hand. And on the other hand, we have mercy. So to say that it's not fair that Richard avoid the death penalty is not the end of the case, because you must consider mercy.

“The law is a very subtle thing, because it directs you to consider not just the question of fairness, but the question of mercy. Ms. Vanderlee said, well, show Mr. Clark the same mercy he showed to Roxanne Doll. Well, I would ask you not to do that. I would ask you not to put yourself into Mr. Clark's shoes. You are in the jury room with your fellow jurors, you are making a sober and reflective decision based on your moral sensibilities, and there is no obligation for you to do what Richard Clark did when you bring back your verdict.

“What is mercy? Mercy is something beyond what is deserved. The law permits you to give Richard Clark something that he really doesn't deserve. The appropriateness of mercy, says the instruction, the appropriateness of the exercising of mercy is itself a mitigating factor you may consider in determining whether the state has proven beyond a reasonable doubt that the death penalty is warranted. I would suggest to you that mercy is appropriate in this case, and something that you have to consider in reaching your verdict.

“Members of the jury,” concluded Jaquette, “there are sufficient mitigating circumstances in this case. Not sufficient mitigating circumstances to avoid a sentence of life in prison without the possibility of parole, that's already been decided. There are sufficient mitigating circumstances, however, to avoid the sentence of death. I would urge that you bring back a verdict in your verdict form of no, that as a consequence, Richard Clark will be taken from here and put in prison for the rest of his life, which is the sentence he deserves. Thank you.”

At the conclusion of Jaquette's presentation, Judge Thorpe said, “We will now have rebuttal for the plaintiff. Ms. Vanderlee?”

Jo Vanderlee kept her remarks short, pithy, and pointed. “Thank you, Your Honor. I would like to address a few things that Mr. Jaquette brought up,” said Vanderlee. “And one is that there is absolutely no evidence that his client, Mr. Clark, likes to do things like walk on the beach or go to the mountains. In fact, there was a lot of things that Mr. Jaquette brought up in his closing arguments which were simply not brought up in evidence.

“Some of the things that were in evidence,” she said, “were the fact that Richard Clark was drinking the night Roxanne was raped, and killed and kidnapped. But not to the extent where he was having accidents, nor to the extent that someone would cut him off in a bar, nor to the extent that the people he was in contact with that night thought he was intoxicated. The Urnesses didn't think that he was unusually intoxicated. They said simply that he had been drinking. That is not a mitigating circumstance.

“I would also like to point out,” continued Vanderlee, “that the reasonable doubt standard that you dealt with in the guilt phase of this trial is the same standard you have to deal with here. It's not a mathematical concept. You decide whether the state has proven beyond a reasonable doubt that there are not sufficient mitigating circumstances, you decide.” There were, she insisted, no mitigating circumstances—not even mercy—to keep Richard Mathew Clark from receiving the death penalty.

The arguments ended; the rebuttals ceased. The hushed rustling in the packed courtroom echoed back from the high ceiling to the solid wood doors opening out into the clatter and din of the Snohomish County Courthouse. Jury room number 8 would be sole witness to the jury's final deliberations regarding the punishment and sentencing of Richard M. Clark. They decided upon the death.

 

 

 

“I'm sure he did it,” said Judge Thorpe to newspaper reporters from the
Everett Herald
. “I will not hesitate to sign Richard Clark's execution warrant.” As Clark had not yet been sentenced when Thorpe made this comment, the defense immediately filed a motion for Judge Thorpe to step down—to recuse himself from the case.

Thorpe gave his lack of actual bias against Richard M. Clark as reason for denying the motion, but several attorneys were somewhat surprised when Thorpe did not recuse himself. Among them was Suzanne Lee Elliott.

“Trial before a fair and impartial judge is a fundamental right,” she said. “That right extends to sentencing.” The Washington State Supreme Court previously wrote, “The principle of impartiality, disinterestedness, and fairness on the part of the judge is as old as the history of courts; in fact, the administration of justice through mediation of courts is based upon this principle.

“The fundamental nature of this right,” insisted Elliott, “is demonstrated by the fact that not even the appearance of bias is tolerated. Our system of law has always endeavored to prevent even the probability of unfairness.” A proceeding does not meet the requirement of the appearance of fairness, she explained, if a disinterested observer would be reasonably justified in thinking that the judge wasn't impartial.

There were other issues raised by the defense—issues that could either cause the sentencing itself to be stopped or for a new trial, or sentencing phase, to take place. On the day Judge Thorpe handed down the sentence, defense moved for an arrest of judgment.

“We are asking at this time for the court to enter an order arresting judgment and sentence Mr. Clark to the lesser penalty of life imprisonment without possibility of parole.” The motion was denied. Jaquette, unfazed, spoke up immediately.

“Your Honor, we will then next ask the court to grant us a new penalty phase proceeding. The basis for this motion,” said the defense, “is based upon matters that the court has previously considered. We ask the court to reconsider it.”

The essence of the defense motion hinged on a familiar name—the name of a young girl who packed a backpack, strapped on her Rollerblades, and skated away from the home of Julie Gelo—Feather Rahier.

“The court permitted the state to introduce evidence in the penalty phase of the trial about the facts behind the 1988 conviction of Mr. Clark for unlawful imprisonment. The court, had ruled at the time of trial that that was not admissible. The court, however, allowed the state to bring in the facts behind the 1988 conviction.

“It's our position,” said Jaquette, “that that goes beyond what is permitted to the state in a penalty phase. I've indicated I think the argument pretty completely in my brief. I have cited not only the circumstances of this case, but I cited to the arguments which counsel made to the jury, reflecting those facts. And it's our position that not only was the introduction of the evidence improper, but also the argument based upon that.”

The defense attorney, gaining momentum in what he firmly believed was a valid argument, quoted from the prosecution's own statements to the jury. “From the transcript of counsel's closing argument, ‘He preys on the young, he preys on the vulnerable, and he preys on the . . . ' And then there was an objection and the court overruled the objection.”

Thorpe and Doersch remembered the words and the objection. “That was in their opening argument,” said Jaquette. “In their rebuttal, counsel again went on to say, ‘But she did not win because this defendant preys on the vulnerable and the weak and the small.'”

To make sure everyone knew exactly what he was referencing, Jaquette stated it plainly: “He brought up the matter of Feather Rahier directly to the jury. Your Honor, I think the evidence together with the argument is improper. In essence, what the jury is doing is not sentencing Mr. Clark for the crime that he was charged with. The jury was invited by the evidence and by argument of counsel to conclude that this is a man who should be executed because he preys on the vulnerable and because he preys on the young.”

In short, Jaquette was advancing the theory that the jury was passing judgment not only on the matter of Roxanne Doll, but also on the matter of Feather Rahier. “I think under the laws of Washington, that would be improper,” argued the defense.

Prosecutor Doersch disagreed, and countered by defining what he meant by the words referenced by Jaquette. “The evidence that this jury had is that this defendant preys on the vulnerable, the weak, and the small, to wit, a seven-year-old girl, to wit, Roxanne Doll.

“With regard to the admissibility of that evidence,” Doersch said, “the court heard evidence at the time before the argument [to] the jury, weighed that evidence, and made a determination that it should come in. And I also note that there is no objection following the statements of Ms. Vanderlee, as you know of his conviction of little Rahier,
R-A-H-I-E-R
. There is no objection to that point. There is objection before to the vulnerable, the weak, and the small. And further, on the argument goes, you know, he goes into homes, he's a burglar, he's a thief, he's a criminal, that certainly is material.”

Even if admitting the details of the Rahier incident was an error, countered Doersch, “and the state does not concede that there is an error. If anything, it's a harmless error, and it is not the kind to arrest of judgment, in light of the evidence against the defendant, both in the trial and penalty phases.

“The court made a well-founded decision,” Doersch said to Judge Thorpe, “to admit the additional facts with regard to the 1988 conviction.”

“The measure of this whole question,” countered Jaquette, “is the prejudice. And the measure of what is prejudicial is what is contained within a judgment and sentence. It's the ordinary thing that the state is allowed to introduce information that is not prejudicial. In this case, we have a lot more than information. We have something that gives additional facts about the [Feather Rahier] case and the facts about that case is not an abstract conviction; it is something that is of a similar nature to what the defendant is on trial for now. Those things, I think, do create the kind of prejudice which I think would be improper under Washington law.”

“You may be right, Mr. Jaquette,” said the judge. “But I'm persuaded that there are no Washington cases [that] require the ruling that you seek. And in reading the United States Supreme Court decisions, it's clear that they speak in terms of criminal history of character of the defendant, as reflected therein, et cetera, and they don't speak in terms of judgment and sentence. They don' t speak in terms of naked convictions. And I'm persuaded that the amount of evidence that was allowed with respect to the unlawful-imprisonment conviction was merely enough to give the jury a sufficient indication of what the conviction was so they could make some intelligent decision with respect to it.”

The expression on Jaquette's face bespoke volumes of disagreement. “It must be borne in mind,” continued Thorpe, “that there was a tremendous amount of information in that unlawful-imprisonment conviction that would have been tremendously prejudicial to the defendant and that was all kept out. I think the bare minimum that was put in was sufficient and was not unfairly prejudicial to the defendant.”

No sooner had Judge Thorpe uttered the words “So, that motion will be denied,” than Mr. Jaquette spoke up again. “Your Honor, finally the defense would move for a new trial in the penalty phase proceeding based on misconduct of the jury.”

Thorpe and Doersch gave Jaquette a duet of raised eyebrows. “We have filed a brief with that,” continued Jaquette, “which includes a declaration, and I would ask the court to consider that as a presentation of facts upon which the court might rule. Attached to and incorporated by reference to the declaration is a portion of the article appearing in the
Post-Intelligencer
on Saturday morning April nineteenth quoting from a juror who has asked that his name not be included. Having read the article,” explained defense counsel, “we contacted the reporter in question and we have attempted to serve him with a subpoena.... I have been contacted by an attorney representing the
Post-Intelligencer,
who is present in court to represent his client's interest. It's our position; first of all, that the article itself is sufficient to get us what we want. It is our position that the article stands on its own, and that the court should take those facts as being facts upon which it should make its ruling.”

The meat of Jaquette's argument was simply this: “The jury has committed misconduct, and that the verdict in this case is a direct result of that misconduct, and therefore the defendant should be granted a new penalty phase proceeding.

“I refer specifically to three comments that were quoted in the article regarding the jury deliberation process. First of all,” he explained, “the jury apparently was very much concerned with the defendant's demeanor as he sat at counsel table. Mr. Clark chose not to testify. He did not present any evidence whatsoever personally in this case, and the juror was quoted as saying, I'm quoting from the newspaper article: ‘In the end it was his lack of emotion during the trial that helped seal his fate. “It was difficult for us to have mercy,” said one juror, who asked that his name not be used. “If he had shown his compassion and how sorry he was, showed us that he was a human being, but every time you looked at his face, it was blank with certain callousness.” ' The juror said Clark would have a better chance to receive mercy if he exercised his right to testify and given the jury some clue that he deserved mercy. ‘“ We were told to look for some mitigating circumstance,” ' quoted Jaquette from the newspaper, ‘“but he didn't show her any.”'

The newspaper interview, according to Jaquette, revealed three things about the jury. “One is that they were concerned with his demeanor as he sat at counsel table. The second one is that it created the concept that he should have testified, and that he would have been better off if he testified. The court instructed them that they should not consider the fact that he didn't testify in any way in making their decision. Finally the quote from the juror suggests that the defense had some obligation to show that there were mitigating circumstances. ‘We were told to look for some mercy,'” quoted Jaquette, “‘but he didn't' help us find any.' And that suggests that the burden was shifted, at least in the jury's mind, from the state, where it belonged, to the defense to come up with some mitigating circumstances.

“Based on those facts,” concluded Jaquette, “we believe that those facts are sufficient under themselves to give us a new penalty phase hearing. It is possible that the court may want to look further into this matter and resolve what in fact was going on in the mind of the jurors. If that is the conclusion, then we ought to have a hearing in which the jurors are summoned and a detailed understanding of what went on should be done. But we believe that we have enough facts now to get the court to make a ruling.”

Judge Thorpe thanked Jaquette, then turned to the deputy prosecutor. “Mr. Doersch?”

In response, Doersch went politely ballistic. “He just asked the court to do precisely what the case law says it ought not to do, examine thought processes of a jury in coming to its verdict. How is this jury misconduct? I'm listening to this. ‘We were told to look for some mitigating circumstance, but he didn't help us find any.' Who told him to look for that? I guarantee the state did not do so, the defense did that.”

“I think the instructions of the court,” said Thorpe dryly, “required them to do that.” Doersch courteously nodded at the blunt, professional correction.