by Burl Barer
Prosecutor Ronald Doersch began the penalty phase with an unexpected and disturbing entreaty. “I received a request from correction staff,” he told Judge Thorpe prior to the jury entering the courtroom, “that in light of the defendant’s conviction, he should remain shackled for the balance of the proceedings.”
William Jaquette sighed; Errol Scott shook his head.
Chapter 17
Each charge was answered with a guilty verdict, and each juror was individually polled to ascertain the validity of the verdict. There was no doubt. Richard M. Clark was guilty, guilty, and guilty.
“What do you do with a guilty child murderer and rapist?” asked Lloyd Herndon rhetorically. “In Washington State, you have a special sentencing phase to determine if he should spend life in person, or be executed. Richard Mathew Clark was found guilty of all charges—first-degree kidnapping, first-degree rape, and first -degree aggravated murder. There was no delay between the jury’s verdict and the beginning of the penalty phase.”
It was now a life-or-death battle. Prosecutor Ronald Doersch began the penalty phase with an unexpected and disturbing entreaty. “I received a request from correction staff,” he told Judge Thorpe prior to the jury entering the courtroom, “that in light of the defendant’s conviction, he should remain shackled for the balance of the proceedings.”
William Jaquette sighed; Errol Scott shook his head.
“I bring this to the attention of the court,” Doersch said, “because they do have a legitimate security concern.”
“Okay,” Jaquette responded with a tinge of cynicism, “we better hear it.”
“You just did,” retorted Doersch.
“By shackles,” asked the judge, “do you mean leg shackles?”
“Leather restraints,” explained Jo Vanderlee.
“You plan on having leather restraints on his wrists?” asked Thorpe.
Before Vanderlee could answer, the court custodial officer quickly clarified the matter. “Just the legs, Your Honor.”
“Well, we oppose that,” stated Bill Jaquette firmly. “They need some particularized concern as to why it should be done, to overcome the presumption that it shouldn’t be done. Mr. Clark has the same interests now,” he said, “as he had at trial, which was to present himself to the jury in a fashion that would be favorable to him. And I think that is a factor that I’m sure he is considering as he considers his personal behavior in the courtroom. I mean, he sat through the whole thing so far, without demonstrating any efforts to escape or do anything, and therefore I think he has demonstrated over time his willingness and ability to sit calmly here to observe and participate in the proceedings.”
“You said that there is a presumption that he not be restrained,” commented Judge Thorpe, his inflection indicating an offer of proof should be forthcoming from the defense.
Jaquette brought up a previous discussion regarding restraints during the trial phase—a discussion Thorpe perfectly recalled. “I thought that had to do with the impact that it might have on the jury. I can understand that,” said the judge, “but the defendant is no longer presumed innocent. He has now been convicted. And as long as there is no impact on the jury by the restraints, their being leather, they are quiet enough that they wouldn’t be heard by the jury and they won’t be seen by the jury, I don’t see any prejudice to him.
“Well, the right is one that comes out of ancient English common law, and the principle is that a man should not have to appear before the tribunal in chains. I think there needs to be some findings by the court to justify it.”
“Well,” countered Doersch, “Mr. Shawn Wells was sentenced this morning on assault in the third degree, and at that point, he was in shackles. He had presumably been found guilty by plea or some motion before the court, yet he was in shackles. Regardless of how uncomfortable it may be for Mr. Clark at this point, he has indeed been found guilty of the crimes charged. The risk is great,” Doersch asserted, “despite the fact that he has not done anything up until now. Now he faces the certain prospect of life without possibility of parole and possibly death.”
“Yeah,” agreed Judge Thorpe, “I think that’s a sufficient circumstance by itself to warrant shackles, leather restraints.”
“I understand the court’s ruling,” said Jaquette. He understood it, but he certainly didn’t like it. He also didn’t care for the planned victim impact statement that Gail Doll would read to the jury, and he wanted to know exactly what use the prosecution was going to make of Toni Clark, current wife of George Clark Sr., as a rebuttal witness.
“We are in a particularly difficult spot in the penalty phase,” said Jaquette, “because the issue of what can be introduced in rebuttal is an important matter because of the restrictions that exist. As a strategic matter, we don’t want to open doors that would create evidence that’s worse than what would happen if we didn’t open that door. We would like to be able to make reasoned decisions on what to say in relation to what doors might be opened.” What Jaquette wanted was Thorpe to rule on what the prosecution could, and could not, use as rebuttal arguments.
Thorpe merely ascertained from Jo Vanderlee that she would assuredly provide the defense with what she anticipated using as a rebuttal to the defense’s evidence of mitigating circumstances. “I can have that by one-thirty,” promised Vanderlee.
“That would be helpful, please,” said the judge. He then did his best to deal with each one of the defense’s new motions in orderly, efficient progression. “Mr. Jaquette’s motions are pretty straightforward,” he said. “Any objections to the first one?”
“Yes, Your Honor,” replied Vanderlee. “There is no objection to the second and third, but to the first one, I would object. I mean, the defendant’s criminal record is one of the aggravating circumstances that the state is permitted to put forth as evidence in front of the jury in the penalty phase.”
Jaquette quickly agreed with his opponent and clarified the motion. “The motion isn’t to exclude the record of criminal convictions, the motion is to prohibit the facts associated with those cases.” In other words, the defense wanted assurance that the prosecution would not overstep the bounds of reciting Clark’s previous judgments and sentences and go into details of his previous crimes.
“What convictions are we talking about?” asked Thorpe. Vanderlee had no difficulty reciting specifics.
“Specifically, what I would be trying to get in front of the jury for most of Mr. Clark’s convictions is the information and the judgment and sentence. But,” Vanderlee emphasized, “for the 1988 unlawful-imprisonment charge, I would be seeking to admit testimony from Detective Berglund and Officer Snyder. You want to know what the defendant’s prior criminal history consists of?”
“Yes, please,” said the judge.
“He’s got an unlawful-imprisonment conviction; found guilty January 12, 1990, taking a motor vehicle without permission, and a second-degree burglary, sentenced January 18, 1990; taking a motor vehicle and eluding, sentenced January 22, 1992. And taking a motor vehicle without permission, sentenced September 17, 1992. He also has,” she continued, “a juvenile conviction for fourth-degree assault, reduced from a second-degree assault. And he has two third-degree theft convictions that are obviously misdemeanors.”
Vanderlee then presented her reasoning on delving into details of the Feather Rahier case. She argued that there was no law in Washington State that holds that underlying facts of previous convictions should not be admitted.
Jaquette was virtually drop-jawed. “The penalty phase has to be focused on mitigation. The one mitigating circumstance that is permitted [to the prosecution] is a record of prior convictions. We are way, way, way beyond the record of prior convictions if we are getting into all these assorted facts and details. I mean,” he said, almost exasperated, “what is it that the prosecuting attorney is now going to be permitted to argue to the jury? Is it going to be able to argue that because Mr. Clark has a record of prior convictions that he is therefore
someone who is worthy to be executed? Or are they going to say [about the Feather Rahier case], ‘Oh, look, here’s another case just like this one, only he didn’t quite get so far, and therefore we got to be sure.... That is not what they get to do. That is beyond proper argument. . . .”
“Your Honor,” countered Vanderlee, “we are not talking about dumping garbage here in terms of criminal history; we are talking about reliable information contained in police reports. . . .”
Judge Thorpe didn’t see anything in the law restricting the plaintiff from putting on anything other than judgment and sentence. “So I will allow the testimony about the age of the child and that she was a neighbor, the judgment and sentence, and the police report.”
William Jaquette was almost beside himself with incredulity. “Your Honor, just a final dying gasp on this whole issue,” he said, pointing out that case law clearly indicated that evidence to be presented relates to mitigating factors only. “This is not a mitigating factor, I can assure you.”
Judge Thorpe believed it was his discretion as sentencing judge to allow the jury to hear details of Clark’s 1988 conviction, including proposed testimony from Feather Rahier, the victim herself.
Feather, of course, had other ideas that included running away from home rather than participate in such courtroom shenanigans. Her motivation wasn’t case law, but personal emotional pain. Indeed, it was the topic of pain and deprivation, both emotional and physical, that the defense would present as their first and most powerful mitigating circumstance.
Jaquette sat down at the defense table and let loose a long sigh. His odds of saving his client’s life in this Snohomish Country courtroom were not worth a wise man’s wager. It was his firm and unalterable conviction that allowing the prosecution to parade details of the Rahier incident for the jury’s consideration was both a judicial error and prelude to the death sentence for Richard M. Clark—a sentence resultant from prejudice and emotion. William Jaquette held firm to his vow: give every client the best defense under the law. After all, it was the law that he defended, not the alleged act of the defendant. He would do everything possible to reduce the emotional aspects that could interfere with the jury’s sober consideration of his arguments.
“We request,” said Jaquette, “that the state be prohibited from introducing at any time during the penalty phase any in-life photographs of Roxanne Doll.”
“Your Honor,” said Jo Vanderlee, “I would point out to the court that the defense is admitting fourteen photographs of a cherubic-looking lad in mitigation, so I would submit what is appropriate for the defense would be appropriate for the state in this case.”
“We obviously object,” said Jaquette, and he argued that the in-life photos of young Roxanne were not appropriate—they were not required to prove the victim’s identity, nor did they relate to any mitigating factor. “There is no basis to suggest that the state gets to put on a show here to show a bunch of pictures of the victim, because the pictures of the victim don’t go to the question of victim impact, or the impact of the death of the child upon the family.”
Vanderlee countered his comments by insisting that the photos illustrated Gail Doll’s proposed victim impact statement. Doll’s slightly truncated testimonial would form part of the prosecution’s presentation. The defense, however, believed that Doll’s statement should be saved until sentencing. “Your Honor, I am not denying that we are swimming up a pretty strong stream in that, because as a general proposition, the court has ruled that this type of evidence is admissible because of the Eighty-fourth Amendment to the Washington Constitution, which is essentially the victim’s rights amendment. Again, it’s our position generally that it is excludable, because it is something that should be heard by the court at the time that the sentence is imposed. Beyond that, I am of the opinion, and would urge the court, that the court has to take it in the context of the particular case. In other words, the state doesn’t get to put on any victim impact testimony. I think it has to be deemed to be relevant and its probative value outweigh its prejudicial effect.”
This case, Jaquette argued, had some unique factors to it. “The unique factor that I would point to is the fact that this particular offense had tremendous community impact,” he said. “We moved for a change of venue, because of the impact that this case had upon the news and, in turn, the impact that all the news presentations had on the people in the community.
“Many people who were interviewed as possible jurors,” he reminded Thorpe, “indicated that they had read about and seen it on television, read about it in the newspaper. A number of people were excused because they just couldn’t get beyond that. In fact, we have one juror on the panel today who herself admitted at one point she read the newspapers and concluded that the defendant was guilty. So I think what we have is a situation where the impact, or the potential for abuse by victim impact, abuse to the question that’s before the jury now, is quite high. Therefore, we generally move to exclude all victim impact statements and exhibits.”
Judge Thorpe did not concur completely with either Jaquette or Vanderlee, and ruled that “some victim impact statement is permissible.” One in-life photo of Roxanne Doll was to be selected to share with the jurors.
Prior to the jury being seated, Jaquette and Vanderlee skirmished over a few more important issues: the state wanted excluded from the mitigation/sentencing phase any testimony by Richard Clark’s relatives in which they express their desire to have Richard Clark live because they love him.
“There is a federal case, Your Honor,” said Jo Vanderlee, “that indicates it’s improper for the defendant’s relatives to get on the witness stand and say that they love the defendant, and in effect that they don’t want him to be put to death. It’s not a fact about the defendant, because most, if not all, relatives love their relatives regardless of [the] worth of that person, and it’s not a fact about the offense. So it’s not a mitigating circumstance, period, in Coleman v. Saffle, which I cited in my brief is authority for that position.”
Jaquette was quick to counter Vanderlee’s assertions. “It’s our position that indeed whether an aunt and a brother have affections that are for the defendant is a factor that could be considered,” he said. “The fact that he is loved by his aunt and his brother, that they don’t want to see him die, that it would be painful to them, is a fact about the defendant which bears upon the decision.”
“This argument,” interjected Vanderlee, “is simply to get sympathy from the jury, and that is one of the reasons that it has been disallowed in the federal courts.”
“Not in this case,” Jaquette told Thorpe. “Obviously, sympathy is not the issue, mercy is, and mitigating circumstance is, and I think it qualifies as being under this definition that we will probably be using for mitigating circumstances, and indeed a definition the court has already read to the jury, or at least a portion of it has already been read to the jury, that it comes full square under that concept. It says something about the defendant—about the character of the defendant.”
“Well, then,” asked Vanderlee slyly, “can I also get into character evidence?”
“In rebuttal, sure,” said Thorpe.
“Whoa,” called out Jaquette, “we should talk about that. If they testify that they love him, is his rebuttal that they really don’t love him?”
The three looked at each other, shrugged, and Thorpe noted that he had not yet heard the cross-examination.
“You said we could get into future dangerousness,” said Vanderlee, changing the subject.
“I said you could argue it, ” Judge Thorpe corrected her, “but not put in evidence about it. I ruled that you may not put on any evidence, because you said you weren’t going to in the first place.”
“Right.”
“Why should they not,” asked Thorpe, turning toward the defense, “be allowed to argue future dangerousness?”
“Because they can only argue things for which there is evidence to support,” Jaquette rep
lied. “He will be imprisoned with adults and no one seven years old is going to be anywhere near him.”
“Correct,” said the judge. Jaquette nodded, as would a student passing a test, and the jury was brought in to decide the fate of Richard M. Clark.
Part 4
SENTENCING
Chapter 18
“You have been reconvened for this special sentencing hearing,” stated Judge Thorpe. “At the conclusion of this hearing, you will have the duty to determine what sentence answering the following question shall impose:
“Having in mind the crime of which the defendant has been found guilty, has the state proved beyond a reasonable doubt that there are not sufficient mitigating circumstances to merit leniency?
“If you unanimously answer yes to this question, the sentence will be death. If you do not unanimously answer yes, or if you unanimously answer no, the sentence will be life imprisonment without the possibility of release or parole.
“The state bears the burden of proving beyond a reasonable doubt that there are not sufficient mitigating circumstances to merit leniency. A reasonable doubt is one for which a reason exists, and may arise from the evidence or lack of evidence.
“It is such a doubt as would exist in the mind of a reasonable person after fully, fairly, and carefully considering all the evidence or lack of evidence.
“Only if after such consideration you have an abiding belief that there are not sufficient mitigating circumstances to merit leniency, then you are satisfied beyond a reasonable doubt. A mitigating circumstance may be any relevant fact about the defendant or the offense, which although not justifying or excusing the offense, suggests a reason for not imposing the death penalty.
“You will be given a more specific definition of the phrase mitigating circumstances later on during these proceedings. You are to keep an open mind, and you shall not decide any issue in this sentencing phase until the case is submitted to you for your deliberation by the court.