Broken Doll

by Burl Barer

  Another article described a second-grade girl who was unable to sleep because of Roxanne’s disappearance. These and other stories, defense attorneys insisted, were not only calculated to evoke emotional responses, but the stories also presented a great deal of information about Richard Clark and his past criminal record, including details that the defense would move to suppress at trial. “The case was even featured on America’s Most Wanted,” noted Elliott.

  “Strangely enough,” recalled Detective Herndon, “I didn’t watch that episode of America’s Most Wanted. In fact, I was also on another episode and I didn’t watch that either. I try to keep my work life and home life separate—or maybe that type of show just doesn’t interest me after doing it all day long.”

  The court denied the motion for a change of venue, giving two reasons for the ruling: the lapse of time between the news coverage and the actual trial, and the great care that would be exercised in jury selection—care that would assure Clark a fair trial with the presumption of innocence.

  “The publicity surrounding the case was not inflammatory,” insisted deputy prosecutor Ron Doersch. “For the most part, the publicity had to do with the facts of the case. It was the crime that generated public reaction.” The media coverage discussed the impact of the crime on the victim’s family, he noted. “Is it really inflammatory to report that a murder victim had a family who loved her and will miss her? These are things likely to cross the mind of any thoughtful person upon hearing of such a death. There is nothing inflammatory about reporting them.

  “All of the allegedly emotional reporting was done in April 1995,” Doersch said. “Since that time, the news articles have focused on court proceedings. Until we attempt to empanel a jury, we cannot know what the jurors’ familiarity with the case is, nor its effect on them. The fact that some of the jurors have knowledge of the case is irrelevant. The correct analysis is whether they have such fixed opinions that they cannot act impartially.”

  February 15, 1996

  The trial of Richard Clark, scheduled to begin in February, was brought to a halt. The Washington State Supreme Court announced that it would review Judge Thorpe’s ruling that blocked prosecutors from seeking the death penalty for Richard Clark if he was convicted of murdering Roxanne Doll.

  “This decision indefinitely stays Clark’s trial,” deputy prosecutor Seth Fine told Judge Thorpe. “My guess is that we are looking at a year’s delay in the trial.”

  “A full year?” Judge Thorpe was mildly surprised and openly disappointed. “Can they be convinced to review the case more quickly? Have they ever attempted to expedite things besides Seahawks’ issues,” chided Thorpe, referring to the Seattle Seahawks football team.

  “Yes,” Fine said, “but the supreme court follows a deliberate process for reviewing death penalty issues. It likely will take nine to twelve months.” Fine was only off by three months.

  Arguing before the state supreme court, Seth Fine accused the defense lawyers of engaging in a procedural game. “There is no dispute that notice was actually received,” he said. “The real issue is whether or not the notice was served in an effective manner.”

  The law does not specify how notice must be served. “This is a classic case of rigid compliance with the requirement,” said Fine. “The word ‘service’ can mean twenty different things.

  “For twelve years, a messenger service between the prosecutor’s office and the public defender’s office functioned regularly without any problems,” noted Fine. State supreme court justice Charles Johnson asked Fine if mailing or faxing the notice would be okay.

  “That is an unlikely scenario,” Fine responded, “because capital-case defendants are usually in jail, so mailing documents to their house wouldn’t be appropriate.”

  Justice Richard Guy noted that in some counties defendants are called into open court and served with written notice at that time. William Jaquette, Clark’s defense attorney, pointed out that this was exactly the procedure most recently utilized in the death penalty case of Charles Finch in Snohomish County.

  Charles Ben Finch, eventually convicted of a double homicide, was notified of the prosecution’s intent to seek the death penalty in open court. “There is no ambiguity here,” asserted Jaquette, “when the law is unclear, legal precedence holds that documents must be delivered personally to defense lawyers or their clients. This is not a matter of convenience,” Jaquette said. “The state should do what is required because of the severity of the issue. Let’s do the right thing.”

  The state supreme court, never one to deliberate in a heated rush, delivered its verdict within 240 days. On August 8, 1996, the question of Richard Clark facing the death penalty was finally resolved.

  August 8, 1996

  The state supreme court gave more than a decision; it gave pointed commentary. “This was a close case, and needlessly so. We will not condone sloppy practice,” the decision stated, and reprimanded the prosecution. “The State can easily avoid all the issues discussed in this opinion by the simple expedient, for instance, of serving the statutory notice upon the defendant or counsel in open court, on the record. The State should be aware,” continued the supreme court, “. . . that anything less than a punctilious approach toward the filing and service of the statutory notice in a death penalty case is a risky practice. Especially when the ultimate penalty is involved, this Court’s duty is to ensure the defendant receives every statutory protection the Legislature has provided.

  “Clark’s lawyer noted that the State did not physically bring the papers inside the Public Defender Office. But where the delivery was effected according to the method chosen and controlled by the Public Defender Office and the Public Defender Office assumed physical control of the notice before it even left the Prosecutor’s office, it was a reliable method of service meeting the requirements.”

  In other words, despite “sloppy” and/or “risky” practice, the notification was ruled valid—Richard Clark faced death. Clark asked for reconsideration, but the state supreme court denied it on November 1, 1996. The Snohomish County prosecutor, vindicated in the matter of delivery, was now free to pursue execution.

  January 31, 1997

  The defense team again asked for a change of venue; the court again denied the motion. Final jury selection would begin within thirty days, but not before the defense and prosecution would skirmish over another important issue—potential surprise evidence.

  “We had the strong suspicion that the defense had Mr. Clark examined by mental-health professionals while he was in jail,” recalled deputy prosecutor Fine. “The defense stated ‘the defendant has not pled insanity or has he asserted any other mental defense for the trial phase of these proceedings’. They didn’t say anything about the mitigation phase. The only way to know that for sure if the defense had Mr. Clark examined or tested by psychiatrists and/or psychologists was to find out who visited him while he was in the Snohomish County Jail. The legal question was simply this: does the Snohomish County Prosecutor’s Office, as a criminal justice agency, have access to jail visitation records?”

  Richard Clark’s defense attorneys, Bill Jaquette and Errol Scott, argued that such jail visitation records were the equivalent of “private paper and affairs.”

  Deputy prosecutor Ronald Doersch responded that jail records were kept confidential and only made available to “criminal justice agencies.”

  Any criminal justice agency, including the Prosecutor’s Office, has full rights to jail visitation records. There is nothing secretive nor private about such visits. In fact, as these visits take place in clear and unobstructed view, anyone from a correctional officer to an inmate trustee could easily observe what person or persons visited a particular defendant. Doersch, in addressing the court, portrayed the defense’s position as one designed to ensure that the defense expert witnesses could conduct comprehensive psychological examinations of Richard Clark, keep the results of such examinations and evaulations secret, and thereby prevent the s
tate from being able to rebut the defense experts’ testimony.

  The state requested that its own expert, pretrial, evaluate the defendant and that the results be sealed. Only if the defendant introduced psychological mitigating evidence in the penalty phase would the state have grounds to obtain both the defendant’s psychological evaluations and the sealed examinations by the state’s expert.

  “When a defendant delays in disclosing his penalty phase psychological evaluations and witnesses until after the jury finds the defendant guilty,” said Doersch, “the state is severely prejudiced.

  “The state is unable to rebut such expert testimony. Therefore, the state requests that its own expert, pretrial, evaluate the defendant and that the results and reports of the examination be sealed. If the defendant introduces mitigating psychological evidence at the penalty phase, the state would then gain access to the sealed evaluation and thereby have the ability to present rebuttal expert testimony. When a defendant raises his mental condition as a mitigating factor, the state is entitled to a fair opportunity to refute that claim. The state’s request is designed to ensure that the jury is presented with comprehensive mental examinations conducted by experts chosen by both parties.”

  With access granted to Snohomish County Jail records, the state saw that the defendant was visited by at least two psychologists, noted Ron Doersch—Wendy Marlowe, Ph.D., and Natalie Novick. “Ms. Marlowe is a neuropsychologist who contacted the defendant for a professional visit on January 21, 1997. Ms. Novick is a psychologist who contacted the defendant on January 3, 1997. There may have been another psychological interview of the defendant on January 23, 1997, by a third psychologist.”

  The state believed that the defense consulted these witnesses for expert testimony in the penalty phase of the trial. The rules of discovery were designed to enhance the search for truth, and the process always has been considered a two-way street with the court acting as traffic controller. The goal was to ensure a fair trial.

  The defense first refused the state’s request for any of the psychologists’ reports on Clark, and the prosecutor’s office wanted the court to compel the production to the expert findings and/or notes of Novick and Marlowe.

  The State wanted copies of all psychological reports and evaluations, regardless of whether or not the defense intended to endorse the psychologists as witnesses. In deputy prosecutor Jo Vanderlee’s view, the defense would most likely call the psychologists as witnesses to testify regarding the defendant’s neurological functioning in general and on the day of the alleged crimes in particular. With less than two weeks until trial, Vanderlee entreated the court to compel disclosure of the reports no later than February 18, 1997.

  “She was really ticked off,” recalled Tim Iffrig. “After all, if the jury was gonna hear a bunch of psychological stuff, they should get the opinions of experts from both sides. I mean, I don’t think you can have the defense keep secrets and pull out something at the last minute that the prosecution isn’t prepared for. That wouldn’t make sense. Of course, there were lots of things that didn’t make sense anyway, like all the stupid-ass demands Clark tried to make about media coverage of the trial.”

  February 12, 1997

  Richard Clark, via his court-appointed defender, supplied the court with a laundry list of requests, entreaties, and motions. Under the heading of “Conduct of Trial,” Clark requested multiple restrictions on media coverage. Everett’s newspaper, the Herald, immediately filed objections with the court.

  “Of the nine requests the defendant enumerates in his motion, The Herald objects to Nos. 2, 3, and 4,” wrote the Herald’s legal counsel. “The defendant’s requests seek to prevent the press from questioning and photographing the defendant outside the courtroom, a limitation that goes beyond the state’s rules for limiting press access to criminal proceedings and impermissibly restricts federal and state constitutional rights. Accordingly, these requests should be denied.”

  He also wanted the press excluded from the jury selection process, again showing no reason why the press should be excluded.

  In a typical case, a defendant will seek a court order limiting press coverage only inside the courtroom. In this case, Clark wanted the press further restricted, even so far as they could not attempt to engage him in conversation.

  This request by Clark had no precedent. In fact, Washington State previously ruled that “an order that forbids future communication is a prior restraint on the exercise of free speech.” As such, the prior restraints proposed by Clark were unconstitutional.

  The defendant actually wanted the press prohibited from even asking him questions. “The defendant does not want to speak to any member of the print or broadcast media. Consequently, there is no legitimate reason why reporters should attempt to speak to him,” stated the motion on his behalf. Not wanting to be asked questions by the press is not a constitutional right, and is insufficient to justify prior restraint on speech.

  The Seattle Post-Intelligencer newspaper, part of the Hearst Corporation and represented by Hearst’s legal counsel, joined in opposition to Clark’s emphatic demands. The P-I asserted that the motions must be denied because they violated the First Amendment to the United States Constitution as well as the Washington State Constitution. Both constitutions guarantee public access to judicial proceedings and other public places. Clark’s request for the court to control media access to the trial and public areas near the courtroom were, in the final analysis, ruled overbroad and without any justification. Most importantly, Clark’s request would deny media outlets their constitutional rights as assured in both federal and state law.

  There is a presumption in favor of access to judicial proceedings under the First Amendment to the United States Constitution. Further, the United States Supreme Court has explicitly recognized the public’s right of access to criminal trials. The Washington State Constitution also supports this well-established right: “Justice in all cases shall be administered openly.” This separate, clear, and specific provision entitles the public to openly administered justice.

  There was more at stake than the rights of free press and free speech. These guaranteed freedoms share a common core purpose of assuring freedom of communication on matters relating to the functioning of government. The United States Supreme Court had previously ruled, “The press does not simply publish information about trials, but guards against the miscarriage of justice by subjecting the police, prosecutors, and judicial processes to extensive public scrutiny and criticism.”

  The Seattle Times chimed in with a letter of support for the Herald, and KING -TV addressed the defendant’s motion restricting the access of cameras to the proceedings, and forbidding reporters from asking questions of the defendant.

  The ability to observe the conduct of judicial proceedings is particularly important in cases where there are highly charged public issues involved. “Resolution of the criminal proceedings in this matter is of significant public concern,” wrote Jessica Goldman on behalf of KING -TV, “and television access is critical to securing the public’s right to observe this criminal trial.”

  The rights and freedoms that assured the American people free speech, free press, and the free flow of information would not be denied by Snohomish County in the case of Richard M. Clark. There were other motions, however, governing what could and could not take place in the courtroom that the court approved. Amongst them were rules to which Gail Doll and Tim Iffrig were compelled to obey.

  February 25, 1997

  Two days prior to the rigorous process of jury selection, Gail Doll and Tim Iffrig signed their agreement to abide by the court’s rulings affecting witnesses. “The pretrial rulings,” explained the deputy prosecutor, “are exactly that—rules. The violation of any of them, and there were six in total in this particular trial, could have serious ramifications.”

  The six rules for witnesses in the trial of Richard M. Clark were as follows:

  Witnesses shall not mention the term “po
lygraph” during their testimony, nor shall any witness testify about, mention polygraph tests or polygraph test results.

  Witnesses cannot discuss their testimony with each other until each of them has testified and been excused from further testimony by the court.

  Witnesses cannot discuss their testimony, their feelings regarding testifying, or related topics with members of the press or other media, except upon order of the court.

  All witnesses shall be excused from the courtroom until they have testified, with the exception of Detective Lloyd Herndon and members of the Doll-Iffrig family.

  No witness shall testify regarding prior crimes of the defendant, except upon order of the court.

  No witness shall testify regarding the ruse attempted by detectives and the FBI agents wherein the defendant was told that Agent Vanderberry was “counsel.”

  No witness could mention the Vanderberry ruse but the word was already out. The Washington Association of Criminal Defense Lawyers heard about this ruse and was infuriated that chief criminal deputy prosecutor Jim Townsend actually knew of the investigators’ plans but did not stop them.

  Association president Mark Muenster contacted Washington State governor Gary Locke, objecting to any consideration of Townsend for appointment to a Snohomish County judgeship. “If I were the governor’s counsel, the guy who advises the governor on appointments, I would want to know about any potential skeletons in the appointee’s closet,” he said.