Broken Doll

by Burl Barer

  The nightmare story of Clark’s alleged kidnapping, rape, and murder of little Roxanne Doll was the number one lead story in the newspaper, on radio, and on television. Emotions ran high in Everett, Washington. There were those who, given an opportunity, would have gladly lynched Richard Mathew Clark.

  “Well, this here country is America,” asserted an honored veteran of foreign wars, “and no matter how guilty that son of a bitch is, he’s presumed as innocent as a baby lamb until proven guilty beyond a reasonable doubt in a court of law . . . and then we can kill him.”

  “There is no way Richard Clark can get a fair trial in Everett, Washington,” said award-winning broadcast journalist Chet Rogers. “Media coverage of Roxanne Doll’s kidnapping and murder, emotion laden and virtually nonstop since the day she disappeared, has so saturated the community that finding an impartial jury will be an almost herculean task. Were I his defense attorney, I would, for the sake of preserving American justice, assuredly seek a change of venue.”

  Richard Clark’s attorneys felt the same way and petitioned the court to act accordingly and move the trial outside of Snohomish County. “There had been coverage nearly every day,” recalled noted appellant’s attorney Suzanne Lee Elliott, “and in some instances, two to four stories each day. The defense argued that the venue should be changed because Mr. Clark could not be given a fair trial in light of the publicity in this case.”

  Before Clark’s lawyers would argue that the trial should be held elsewhere, they would argue that his van should not have been held and searched at all. The warrants issued for the searching of his van, they asserted, were illegal.

  “They argued that the physical evidence seized from his van and residence should be suppressed because his van was impounded without a warrant,” recalled deputy prosecutor Seth Fine. “They also argued that there was not probable cause to impound his van because Detective Herndon performed a search of the van the previous day and found nothing obviously incriminatory.”

  The warrant issued subsequent to the impounding lacked probable cause, according to the defense, because Detective Herndon’s sworn affidavit supporting the warrant merely mentioned that Clark had a previous criminal history involving a similar crime, and that Clark had failed a polygraph test with respect to the Doll disappearance. It was further claimed that the affidavit contained intentional or recklessly made material omissions, was merely a boilerplate affidavit, was overbroad, and lacked particularity with respect to evidence to be seized.

  Clark’s defense attorney wanted every piece of physical evidence tossed out because the evidence was seized based on an illegal search warrant. “Since there were four search warrants in total related to evidence seized from the van, and all had supporting affidavits indistinguishable in basic form from the first warrant,” explained Fine, “the defense argued that virtually every piece of physical evidence found should be suppressed as tainted fruit of the illegal van search.”

  The state challenged each of these assertions with respect to the first affidavit because the validity of the subsequent affidavits would stand or fall with the first. In order for a warrant to be issued, there has to be “probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

  The concept of probable cause required “the existence of reasonable grounds for suspicion supported by circumstances sufficiently strong to warrant a man of ordinary caution to believe the accused is guilty of the indicated crime.”

  “It is only the probability of criminal activity,” explained Fine, not actual proof, that determined whether probable cause existed. “The judge is entitled to draw reasonable inferences from the facts and circumstances set forth in the affidavit, and the affidavit must be read in a commonsense manner.”

  When Herndon telephoned Judge Fisher, he mentioned Richard Clark’s 1988 conviction for unlawful imprisonment of Feather Rahier. He also told the judge about the polygraph test given Clark and that the FBI agent who administered the test believed that Clark was “clearly deceptive in his denials.” Herndon also stated to Fisher that if Roxanne Doll was removed from her house in the van, there would be trace evidence.

  The trial court found that although Detective Herndon did not use the word “kidnap” during the telephone conversation with Judge Fisher, the latter “knew the crime with which he was dealing. The police knew that they were restricted to searching for trace evidence left behind after a kidnapping.”

  Clark’s lawyers argued that just because Clark was near the victim’s house on the night she disappeared, had a prior conviction, and supposedly failed a polygraph examination were insufficient bases for probable cause. However, under Washington State law, “prior convictions of a suspect are a factor which can be considered in determining whether probable cause exists.” In this situation, Clark’s prior conviction was for unlawful imprisonment of a young girl for ostensibly sexual purposes.

  “When I got the warrant by telephone,” confirmed Herndon, “my affidavit set forth that after binding her in his garage with a pair of socks, Clark groped this girl’s vaginal area outside her clothing.” This was a crime of the same general nature as that in which Detective Herndon was attempting to uncover evidence, and therefore was not only proper but helpful in establishing probable cause.

  “Polygraph results are not admissible at trial unless stringent conditions have been met,” said Seth Fine, “but the judge can take those results into consideration when making a determination of probable cause. Here Clark’s polygraph performance was deemed deceptive by the administering FBI agent.”

  Clark challenged the conclusion of the FBI agent because Detective Herndon’s affidavit didn’t give the agent’s qualifications or any other reason to assume the agent’s conclusions were reliable or accurate. (Information from a reliable informant has corroborative value even if the informant’s basis of knowledge is not specified.) Here the FBI agent’s basis of knowledge was the administration of the polygraph and his clinical and commonsense observation of Clark’s performance.

  “Clark seemed to be claiming that no foundation was laid in the supporting affidavit to support the agent’s qualifications,” explained Seth Fine. “But the FBI agent wasn’t required to submit a résumé or his curriculum vitae to Detective Herndon in order for the agent’s conclusions and opinions about the polygraph results to be of value to Judge Fisher in determining whether or not to issue the search warrant.

  “It may be correct that, taken individually, these things may not have been enough to establish probable cause,” Fine acknowledged. “But taking this information on the whole, Judge Fisher could form reasonable belief that Richard Clark was probably involved in the criminal activity under investigation.”

  Clark, via his lawyer, also claimed that Detective Herndon made two material omissions or misstatements to Judge Fisher. The first was Herndon not mentioning that he had made a brief but inconclusive search of the van prior to applying for the search warrant. The second was failing to mention that Gail Doll told him she thought she saw Roxanne in bed with her sister when she returned at midnight of April 1, 1995.

  Clark contended that had these facts been included in the affidavit, no reasonable magistrate could have found probable cause to issue the search warrant.

  In order to invalidate the warrant on this ground, Clark had to show evidence of deliberate material omission or statements made in reckless disregard of the truth. “Allegations of negligence or innocent mistake are insufficient,” explained Fine. If Detective Herndon himself had serious doubts about the truth of his own affidavit, or if he had obvious reasons to doubt the honesty or accuracy of an informant, but asked for the warrant anyway, that would be “reckless disregard for the truth.”

  The trial court ruled: “The omission of details regarding Ms. Doll-Iffrig’s statement of her observations is not material. The statement in the affidavit that Ms. Doll-Iffrig was ‘unsure’ of whether she saw Ro
xanne is truthful. This was the substance of oral statements made to Detective Herndon by Gail Doll. The progression of Gail’s thought processes was indicated by the fact that her second written statement is more vague than her first statement.”

  The court ruled that Herndon’s failure to recite all of Ms. Doll-Iffrig’s statements to him was not an intentional or reckless attempt to mislead Judge Fisher. The fact that Herndon also didn’t mention his previous quick search of the van on April 3 was, the court decided, not relevant.

  “The purpose of the April 3, 1995, search warrant,” explained Herndon, “was for trace evidence. During my search on April 2, I didn’t notice anything remarkable—I was looking for maybe a tennis shoe or an item of clothing, or something obvious. Just because I took a look in the van doesn’t mean that there would not be trace evidence in there.”

  The court decided that Detective Herndon did not attempt to deceive the judge by purposely leaving out information. “It was like I was being accused of being a liar,” said Herndon later, “but any error on my part didn’t have any sort of nefarious motive. I was just doing my job to the best of my ability.”

  With respect to Detective Herndon’s statement that Doll-Iffrig was unsure whether Roxanne was in bed at midnight on April 1, 1995, it was an accurate summary of statements on the matter. Gail Doll turned the light on in her daughter’s room only momentarily, and was, upon reflection, unsure whether she saw Roxanne or a large doll.

  “If the court ruled that Herndon should have included those pieces of information,” explained Fine, “then what you do is add the omitted facts to the affidavit and subtract any misstatements. If probable cause still exists after you do that, the warrant stands.”

  Given the difference between a search for trace evidence and the simple search for blatant evidence conducted by Herndon, and given Doll-Iffrig’s numerous statements as to her uncertainty whether she saw Roxanne in bed, the court upheld that there was still probable cause to issue the warrants to search Clark’s Dodge van.

  There was still another lingering and unresolved issue regarding whether or not the search warrant was legal, and it was a question that struck to the heart of what makes America “the Land of the Free”—the Bill of Rights.

  “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures,” states the Fourth Amendment, “shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

  To comply with the mandate of the Fourth Amendment particularity clause, a search warrant must be sufficiently definite so that the officer executing the warrant can identify the property sought with reasonable certainty. Thus, search warrants are to be tested and interpreted in a commonsense, practical manner, rather than in a hypertechnical sense. In general, the degree of specificity required varies according to the circumstances and the type of items involved. A description is valid if it is as specific as the circumstances and the nature of the activity or crime under investigation permits.

  The fact that a warrant lists generic classifications does not necessarily result in an impermissibly broad warrant. The scope of the search warrant Detective Herndon sought was based on the following language in the affidavit: “If Roxanne was removed from her residence by use of the van, there would be trace evidence from the victim in the van.”

  Trace evidence means “small items of a foreign material left on another of which there are many possible types.” This includes hairs, fibers, and other such items. Due to the inherent size and multiplicity of kinds of trace evidence, their prior identification in a warrant is impossible.

  “It therefore appears,” ruled the court, “that the April 3, 1995, search warrant was not impermissibly broad, as it limited the search to trace evidence in Clark’s van of Roxanne Doll. Merely because the search for trace evidence involved the search of many items in the van for trace evidence, including parts of the walls and floors of the vehicle, does not therefore make the search a ‘general, exploratory rummaging in a person’s belongings’ prohibited by the Fourth Amendment.”

  “They seized the van without a warrant,” said Clark’s attorneys. Seth Fine responded, “A motor vehicle may be impounded if there is probable cause to believe that it was used in the commission of a felony.”

  Clark’s argument that the police lacked probable cause to impound his van was based on the same argument used in asserting that Judge Fisher lacked probable cause to impound the vehicle based on the evidence linking Clark to Roxanne’s abduction. This was the same evidence that allowed Judge Fisher to issue a search warrant for the van hours after it was impounded.

  The van remained impounded behind a chain link fence in Everett, and Clark continued to be held without bail in the Snohomish County Jail. In theory, Clark’s battered van could remain parked in that same spot until it rusted into dust—vehicular death by natural causes. Richard Clark, however, faced a more dire threat. If the Snohomish County prosecutor successfully sought the death penalty, Clark could be executed.

  September 19, 1995

  After serious consultation and consideration, the Snohomish County Prosecutor’s Office decided to pursue the ultimate penalty for Richard Clark—the sentence of death.

  When seeking the death penalty, the state is required by law to serve notice upon the defendant and his attorney within thirty days. Neither Clark nor his attorneys, however, personally received this notification until after the time was up. Instead, the state left the notice in the designated box in a restricted area in the prosecutor’s office, and the public defender’s staff retrieved it, took it to the public defender’s office, stamped it received, and left it in the appropriate attorney’s mailbox.

  The notice was delivered to the defendant’s attorney in the same manner as every other motion served for several years—a method possibly at odds with the law.

  Defense attorney William Jaquette did receive a telephone call from a Snohomish County deputy prosecutor advising him that a death penalty notice would be filed regarding Richard M. Clark on January 19, and the notice was filed in the Snohomish County Superior Court on that date.

  That same day, pursuant to an agreement between the public defender’s office and the prosecutor’s office, the notice was left in the public defender’s office box in the prosecutor’s office with a cover memorandum. The death penalty notice and memorandum were picked up by a public defender’s office staff person and carried to that office where they were stamped “Received Sep 20 1995 Sno. Co. Public Defender.”

  It was a simple system, and one that had been in use for twelve years. “The offices of the prosecuting attorney and the public defender have an agreement for transferring correspondence and other papers,” explained Snohomish Country Superior Court judge Richard Thorpe. “Twice each day, a nonattorney staff person of the public defender’s office delivers its correspondence and other papers for the prosecuting attorney to the prosecutor’s office,” Thorpe said, “and retrieves the correspondence and other papers from the prosecuting attorney for the public defender from a box within the prosecutor’s office.”

  The public defender staff picked up and dropped off papers at the prosecutor’s office as part of the courthouse run, each day at 9:00 A.M. and 3:00 P.M. The two offices never adopted a special protocol for service of papers in cases involving the death penalty.

  The state sought personally to serve the notice on Jaquette on September 29, 1995. Jaquette filed a pretrial motion objecting to what he regarded as an illegal notification of the state’s intent to seek the death penalty because neither his client nor he was personally served notification as required by law. After examining the arguments, Judge Richard Thorpe of the Snohomish County Superior Court ruled in favor of the defense.

  The trial court concluded the notice was not timely served under the statute because personal service was
necessary, and struck the notice, directing the case to “proceed without the possibility of the death penalty.”

  Seth Fine, assistant chief criminal deputy prosecutor, whose experience included more than sixty cases argued in the Washington State Supreme Court, requested that august body to consider reviewing, and hopefully overturning, Thorpe’s decision.

  Whether or not the state supreme court would consider the matter was unknown. Hence, everything continued toward trial—a trial the defense wanted moved out of Snohomish County.

  Chapter 11

  December 28, 1995

  Between Christmas and New Year’s Day, the court held the initial hearing on the defense’s request for a change of venue. At that time, the defense introduced exhibits containing articles from the Everett Herald, the Seattle Times, the Seattle Post-Intelligencer, and videotapes and logs of the coverage from KOMO, KING, and KIRO television, and two circulars used to alert the public when Roxanne Doll was missing.

  This media attention, which also included KSTW television in Tacoma, began during the period when Roxanne was missing. Featuring extensive coverage of the massive efforts of the police and volunteers to find her, it also embraced the funeral and memorial services held for the young victim, and the Snohomish County prosecutor’s announcement that he would seek the death penalty. In particular, counsel noted that the publicity was calculated to appeal to the emotions.

  “Articles focused on the concern of Roxanne’s family and friends of the family,” recalled attorney Suzanne Lee Elliott. “Counsel cited, as an example, an interview with a coworker of Roxanne’s mother, Gail Doll-Iffrig. The coworker stated that she tried to do her crying away from the family because she had to be strong for them. The friend’s eleven-year-old son had, according to the news coverage, canceled his birthday party and instead helped spread flyers about Roxanne’s disappearance.”