Due Process

by Lyle O'Connor

I thought out loud, “A handgun would be nice, but city laws against carrying concealed would be problematic. I couldn’t afford the consequences. There is nothing like being an honest upright citizen carrying a pistol for personal defense and catching a felony offense for it.”

  Justyn had thought about this before and answered, “Well, I’d rather be in court explaining why I had to shoot some scum-sucking criminal than him being in court lying about why he killed me.”

  Sound logic, I thought.

  “You want to borrow one of my guns for a while and try it out?”

  “Yeah, why not, I guess that’s the answer.”

  “Brother, I have a short-barreled hammerless .38-caliber revolver that’ll work well for packing.”

  I considered the consequences, but couldn’t say no, the idea was perfect. No one other than Justyn was going to know I had it, I’d probably never use it, but just knowing it was handy would be very comforting.

  “Yeah, I’ll try it.” I’d no sooner agreed to packing when I’d dismissed the idea as nothing more than talk. The next morning I was awakened to Justyn hammering on my front door. He delivered as promised the revolver and included a box of hydra-shok ammo as well. I didn’t particularly care for that style of hallow point in a .38 but then again, I wasn’t really going to be using it to shoot anybody. Worst-case scenario in my mind was to brandish the pistol to ensure my safety. I loaded the revolver and tucked it into my fanny pack. I was ready to get some fresh air.

  I hated wearing that style pack. It was difficult to maneuver the weapon in and out of easily or quickly. I found myself incredibly conscious of the gun and felt any casual observer or passerby could tell I was packing. I tried keeping my hand inside the pack but that was awkward. Regardless, it solved the problem of carrying concealed and abated my concerns about a negative encounter.

  Walking the paths was for the most part scenic, relaxing, and therapeutic. The path I enjoyed the most passed by an elementary school before entering a patch of woods. It was a warm summer’s day in 1994 that left an indelible image seared into my memory of that path.

  I mapped out a course that brought me back to the school in about an hour’s time. I was just nearing the school on my way back through the wooded area when I caught a glimpse of someone ahead of me on the winding path. As I drew closer I could see two people scuffling and the sounds of muffled voices. My hand slowly slipped into the pouch with my gun. It was clearly trouble of some sort. As I went through a shallow depression and across a footbridge I lost all sight of the trail ahead. I reached the top of the steep incline and no one was in sight. My hackles rose on edge.

  I’m like a lot of other folks in that I didn’t want to get wrapped up in some domestic dispute. On the other hand, I didn’t like the looks of what I saw. I slowed my pace as I approached the area of the path where the people were. Over the creek embankment I could see movement. It was the flash of colors from clothing but I was unable to make out what was happening. Suddenly a muffled yell from a female broke the silence. I eased the weapon from the pack and made my way through the brush. I counted on the noise the people were making to mask my approach.

  As I broke through the thicket a man was semisprawled above a woman, pinning her to the ground. He jumped like a startled alley cat, landing on the far side of the woman. His eyes darted about looking for an avenue of escape. With my gun brandished at the ready; its stainless steel frame glistened in the sunlight. I glanced toward the bloody-faced woman who was sobbing hysterically to the point of hyperventilating. Her clothes were torn from her upper body and steeped in blood. She gathered what was left of her blouse around her and slowly made her way to me. I wanted to help her but I didn’t dare take my eyes, or gun, off the assailant. Adrenaline, traversed my veins instantly causing my heart to beat rapidly, yet time seemingly stood still. My thoughts raced, I was in a near panic.

  The perp was silent and awaiting my next move. Game over, I thought. I could shoot and ask questions later. The victim either won’t care if I plug this guy or not remember the chain of events that resulted in his death. I can always say he reached for what I thought was a weapon and fired in self-defense.

  Now what? Knowing the potential for an escalation on my part, I hastened the victim to move behind me. I watched the attacker, intently trying to discern what he was thinking, but I drew a blank. The one and only thing I was certain of was one flinch, and I was more than willing to crack a primer on him.

  As the victim regained composure she made her way to the trail side of the bushes out of view of her attacker. I wanted to maintain visual on her but heavy underbrush made it impossible. She was obviously frightened beyond reason and why wouldn’t she be? Her serenity had been stolen. A near miss with death would do that to anyone. Nonetheless, she was the only lifeline out of the predicament.

  I can’t be sure how long the assailant and I remained locked in a motionless state, but in psychological time it was an eternity. No sooner had my adrenaline begun to ease when my hair stood on end at the sound of, “Kill him.” The thunderous pulsation of a voice rang out a second time, “Kill him! This is destiny.” An apparition appeared behind the detained man pointing a finger in his direction, “Kill him! Kill him!” I dared not respond. How could I without bringing attention to myself in front of the apprehended assailant. Yet, I noted he sensed something was near him he could not see. The ghostly figure was of a blonde female in her late teens or early twenties. Her hair was long and waving, yet there was no breeze. She was dressed in a bright white light making any clothing indiscernible. Her eyes were glowing reddish embers, a reflection of her inner being. She was displaced from another dimension in time to interact with the present. I wanted to appease her; I was more than willing to oblige her. Subconsciously I was hoping the guy would give me a reason to terminate his worthless life but justification was necessary.

  The victim had flagged down a pair of boys riding by on bicycles and sent them for help. The sound of one, then two police vehicle sirens, faint at first, grew louder as they drew near. I knew they’d arrived when the sirens went silent. It was a relief to hear the sound of police radios in the distance and the rapid footsteps approaching the embankment. The spirit-being faded away, but her voice resonated in my ears, “This is destiny.” Still distracted by the apparition I was barely aware of the first officer to arrive. “Put the weapon down,” he repeated over and over. Complying, I laid my revolver not far from the perp and raised my hands above my head. Secretly, I had hoped he would make a lunge for the pistol and meet his doom. He looked but didn’t bite. Additional officers swept by me, taking Lewis Pohle into custody.

  Officers confiscated my weapon at the scene, but I knew it wouldn’t end there. Doing good never ends up right. I may have stopped a rape or murder, but I also violated the law and I knew it. I had rehearsed in my mind, if I was nabbed for the unregistered firearm or carrying it without a conceal carry permit what I might say or do. What I really wanted was an opportunity to tell a jury, “I did it and I’d do it again!” Whatever punishment came my way, so be it. But now, my brilliant defense was made complicated by the fact I actually brandished the pistol to intervene in a criminal act. This would not be rewarded in the judicial system as one might hope.

  The victim, Estelle Hertz, made a gesture of thanks to me while the field interview was in progress. The cops seemed conflicted. On the one hand they knew I stopped a worse scenario from occurring. On the other, they could not condone an armed citizenry taking matters into their own hands. I was transported to police headquarters, interviewed, and given a receipt for my gun. Hours later, at the conclusion of interviews with detectives I was provided a ride home. On and off over the next few months I had the opportunity to repeat my story to the detectives and District Attorney about what I observed and my course of action.

  I saw Estelle on a couple of occasions during some of the questioning. Rehashing the story only served to deepen her emotional scars. Maybe in a therapeutic environment it p
ays off to talk about events like she suffered, but interrogation techniques are less than comforting to a victim. Reliving the events may produce a more stable case for police and prosecutors but it drove Estelle into a shell. I didn’t understand what was wrong with the facts of the case in the first go-around. Maybe I didn’t know all the facts but what was there to know other than, “Pohle was guilty.”

  At one of the police interviews I met Mr. Hertz. He was an intimidating presence. He was lean and muscular. His stature was a good six feet plus. He was leathery, tanned, with cold steel-blue eyes that squinted almost closed. His hands were massive and powerful as he shook my hand. He appeared calm and collected yet I sensed an underlying short fuse. He didn’t talk much and I suspected that was his personality, yet when he did speak he was undoubtedly sincere. “If I’d been there we wouldn’t be here today,” Mr. Hertz remarked. He didn’t have to repeat himself to make a believer out of me. The attacker, Lewis Pohle, may not have gotten lucky the way he had hoped the day he assaulted Estelle. On the other hand, Pohle should thank his lucky stars he had the misfortune to cross my path instead of Mr. Hertz’s.

  There were the usual grand jury indictment hearings. What a goat rope! The fact that we had to appear three different times was certainly an indicator things were going poorly for the prosecution. Lewis Pohle retained a well-known defense attorney. How could an indigent hoodlum like Pohle afford a high-profile class act like Ruben Darroe? He had the prosecutors stymied. Darroe was capable of presenting a serious challenge to a cut-and-dried case. Something seemed amiss. Perhaps someone else had a vested interest in how this trial turned out. It was not so much about the players but about the endgame results.

  Darroe was a master at dragging a case out. He knew the odds shifted to his favor the longer he stalled the actual court date. In small-town America, a crime like this would be big news for a long time. In metro areas like Portland, the media would move on quickly to the next sensational crime, and they did. The prosecutors had cases piling up; they needed to put this behind them. Pohle himself had a checkered past, having accumulated multiple convictions in his adulthood. Some were minor thefts and trespassing charges, but other convictions demonstrated a concern for his base nature, that is, assault, public indecency, lewd and lascivious acts, and voyeurism. None of his convictions had caught much jail time and with Darroe at the helm, Pohle hoped to continue his run of good luck.

  The trial preparation drug out for months. The defense filed motion after motion to dismiss various items of evidence or testimony. Attorney Darroe referred to me as a “racist” because the defendant was Louisiana Creole. His roots were Dominican and Louisiana French. I could not have cared less. It is an insult to play the race card. In my description of Pohle to police and in deposition I referred to him as black. Well, he looked black to me. You know, like with dark pigmentation of skin. It wasn’t racist, it was a fact. But Darroe found another use for it; a ploy to discredit my testimony.

  Darroe seemed to have a grudge against me right from the beginning. He made accusations of vigilante activity on my part. His statements were unfounded but it didn’t stop him from spouting them out. Prosecutors preferred for me to disregard his actions and accusations but his deception was difficult to ignore. Darroe wanted to see me bite the bullet for having an unlicensed firearm, being unlicensed while carrying concealed, brandishing a firearm, and assault with a deadly weapon, thereby muddying up the water for court testimony. Darroe was quick to point out I violated his client’s civil rights repeatedly and if this behavior went unpunished by the courts, it would encourage more people to take the law into their own hands. I thought “what an excellent idea.”

  Pohle was unable to make bail himself and whoever was flipping the bill for Darroe was not so inclined for Pohle. So he hunkered down and awaited the game’s outcome at the pretrial facility. Estelle Hertz was mending physically. The vicious assault had left very little physical damage. The same could not be said for her mental and emotional state.

  Tuesday, 2 May 1995, I was notified the case reached a plea agreement. Prosecutors felt the best course of action was to accept the assault conviction and ask for a steep sentence. I showed up early for the disposition of the case. I had hoped to talk with the Hertz family but they were mysteriously absent. The judge read the plea agreement then levied his decision. Lew Pohle would receive a whopping three-year sentence with some stipulations for when he was released. He was credited with time already served and placed on probation for the remainder of the sentence. This dog-and-pony show was over.

  Defense Attorney Darroe had worked the miracle he was hired for. It was an exceptionally baleful miracle and he was proud of it. He did more than defend his client. He went out of his way to revictimize the victim. Darroe stooped low and I held him personally responsible for this miscarriage of justice.

  Pohle didn’t have a reason for his criminal behavior on the bike trail. He didn’t have to, Darroe made one up for him. He hired a staff of former lawmen to conduct their own investigation. They left no stone unturned in the backgrounds of the Hertz and me. He wasn’t protecting the rights of the accused—he was fabricating a fantasy world and robbing the victim of her opportunity for a fair trial. In my book, Darroe was no better than Pohle and my book was about to be the only book that mattered.

  I stood as the judge exited the court room. Other attendees were quietly filing out and soon I stood there alone. “Kill him.” The voice of the apparition came to mind; I could no longer argue with her. She was correct, I should have killed him. I named the spirit-being Destiny since she had become my travelling companion. I got the impression her past was blocked from her and she had no recollection of who she once was. Having no memory might serve, in some cases, as a definition of heavenly existence. For me the question was clear. How could I follow Destiny’s direction?

  In the aftermath of the mock justice I disdained the fact that I had not shot Pohle when I had the chance. Logic told me one thing and Destiny another. Pohle would come back to haunt me, and I him, before it was finished.

  There is no mystery about what Pohle was doing that day on the bike path. I knew what he was capable of and he was still the same man. He would strike again. He might learn to be clever, but he was incapable of becoming wiser.

  I began with a new fervor to reorganize my files and included additional violent crimes, such as home invasions. I spent more time making personal notes from true crime shows that indicated what either police look for at a forensic scene or mistakes criminals had made. I frequented used book stores finding a treasure trove of books on forensics and crime scene investigations from police academies. It was clear, “the devil was in the details”—or was it just me in the details? Common sense sprinkled with a little understanding could take someone a long way.

  At the time, I knew most of my neighbors since I had bought my home. The house was a 1,900 square foot split level. The area was relatively crime-free and many folks had lived in their homes most of their lives. It was located on a large city lot just off NE 122nd Avenue and NE Sandy Boulevard. Every summer we had a block picnic party which set the pace for future gatherings with neighbors up and down the street throughout the summer.

  Harold Horn was one such newcomer to our area in 1994. As a crime reporter for the Portland Trumpeter-Gazette, he had my full attention whenever he spoke. He was a superb storyteller as well as an accomplished feature writer. I could tell his writing was constrained to facts while his stories took on an air of heavy embellishment. He was a bit egotistical and liked to toot his own horn. He elaborated on police investigations as if he had actually participated in the case. We all knew it was bunk but he was a really good storyteller and they’re hard to find.

  Harold chose to be on the side of law enforcement although it always seemed he could have been just as involved from the other side. Sounding the horn on breaking news is every reporter’s focus, Harold was no different. As news reporting took more liberties in the way they co
vered information, he found more and more creativity in his abilities. Harold’s claim to fame in the metro area was covering what he referred to as “stale dated” cases. Crimes that were a year or more old and going to trial were lost to the public’s consciousness. He was in a position to breathe life back into the coverage just like it was a new scoop. He was ingenious with his feature articles covering whatever aspect of the “trial” he wanted to present. People loved them in a morbid way. He related many times how personally satisfying it was to cover a trail or plea deal, then editorialize it to whatever conclusion he wanted his audience to come to.

  Harold took a particular interest in the Hertz case, mostly because of my involvement. I kept Harold up to date on my dealings with the judicial system while he returned the favor from his perspective. Pohle was an unknown character to Harold. So many names and so many faces made it hard to remember an insignificant moron like Pohle. On the other hand, Darroe was a well-known name to Horn. He shared with me what I thought were ridiculous courtroom antics credited to Darroe. I doubted any judge would really allow such dramatics in a courtroom, but I was soon to be proved wrong. Horn said Darroe was so well known for his shenanigans, he and his colleagues referred to courtroom antics as Darroe-isms, a quip of sorts to an evolutionary Darwinist theory of survival of the fittest.

  Horn had watched Darroe perform in person. According to him, the courtroom action was nonstop. He bullied and intimidated victims and witnesses during testimony, making every attempt to cause an embarrassing moment that he could capitalize on. He recounted many of the trials where Darroe had successfully represented the alleged bad guys and got them off or got them ridiculously less time in jail. Before the plea deal was reached in the Hertz case I wouldn’t have believed it possible to pervert justice that efficiently; I was wrong.

  Harold was outspoken and opinionated. He wasn’t shy when it came to relating his thoughts about Darroe.