by Burl Barer
“During your deliberations, you should consider anew the evidence presented to you in the first phase of this case, you should also consider any evidence offered and received during the sentencing hearing. We will now have opening statements from counsel, first for the plaintiff, Ms. Vanderlee.”
“Your verdicts in the first phase of this trial bring us here to the sentencing phase of the trial,” she began, “and as the judge just instructed you, the question that you will now have to answer is, having in mind the crime of which the defendant has been convicted, has the state proven to you beyond a reasonable doubt that there are not sufficient mitigating circumstances to merit leniency. That is the question you will be asked to answer in this stage of the case. The state is permitted, in this phase of the case, to only get into three areas of evidence. Those three areas are all of the evidence from the guilt phase or the first phase of the trial. The second portion of evidence the state will be able to admit to you is the defendant’s criminal history or his record of convictions.
“You will hear about his prior convictions through certified copies of documents called judgment and sentences. The defendant’s criminal history consists of several felonies and some misdemeanor convictions.
“You will hear about a May 28, 1988, unlawful-imprisonment conviction that the defendant has. Detective Diane Berglund will testify that that conviction involved the unlawful restraint of a four-year-old girl, a neighborhood girl known to defendant, who he restrained by tying her up in his garage.
“You will hear about a felony conviction from October 11, 1988, for taking motor vehicle. The defendant was convicted of that, and served time in the county jail as well. You will hear about a second-degree burglary conviction the defendant committed here in Snohomish County. You will also hear about a felony conviction that the defendant committed for the crime of attempting to elude a pursuing police vehicle. And also, as part of that crime, the vehicle that he was attempting to elude the police in was a stolen vehicle, so yet another taking of [a] motor vehicle. And Mr. Richard Clark also has some misdemeanor convictions for third-degree theft. He’s got two of those and for vehicle prowling.
“You will also hear some evidence in this case about Roxanne Doll. You will hear evidence about what kind of child she was and why her family misses her so much. Mrs. Doll-Iffrig will testify that Roxanne was a trusting, friendly child, that Roxanne liked to ride her bike, that was her—one of her last accomplishments. In fact, she will testify that Roxanne liked to read, that she liked dressing up, and that she liked playing with her pets and her favorite pet was her cat.
“At the conclusion of the state’s case, the defense may choose to put on evidence, but they do not have to. And after that, the state may, if necessary, put on witnesses to rebut evidence presented by the defense. And at the conclusion of the evidence, I submit to you, ladies and gentlemen, the answer to the question that you are asked to answer will be yes, the state has proven beyond any reasonable doubt that the defendant does not merit leniency, and that the appropriate sentence in this case is a sentence of death.”
Vanderlee sat back down, and Judge Thorpe turned toward Jaquette and Scott. “Does the defendant wish to make an opening statement at this time, or reserve?”
“Your Honor, we will reserve our opportunity to make an opening statement,” replied Jaquette.
“Very well,” said the judge, and he returned his gaze to the prosecution. “You may call your first witness.”
Ronald Doersch arose. “The state calls Detective Diane Berglund.” The entire 1988 case of Richard Clark’s unlawful imprisonment of Feather Rahier was presented before the jury, beginning with Diane Berglund, and including Officer Dwight Snyder, Julie Gelo, and even Feather’s mother, who was flown up from California. Feather was subpoenaed to appear, and a warrant was issued for her arrest, but she managed to elude all attempts to locate her.
Following the jury’s total immersion in a matter resolved almost a decade earlier, Judge Thorpe intoned: “We will now have opening statement for the defendant.”
William Jaquette stood to address the jury. “Thank you, Your Honor. Counsel, ladies and gentlemen of the jury, the night of March 31, 1995, Roxanne Doll suffered immeasurable terror and immeasurable pain. She lost her life and thereby lost the opportunity that a full life, full of experiences, would have brought her. She also was a great loss to her family, and you heard the evidence about the pain and suffering that her parents and her brother and sister have endured. I am not here to try to diminish that pain and torture, but what I am here however to do is to ask you to consider the question of mitigation.
“I’m here to tell you why it is that given that, Richard Clark does deserve leniency,” explained Jaquette, “that there are sufficient mitigating circumstances to merit leniency, and that the sentence that Richard Clark should receive is a sentence of life in prison without the possibility of parole.
“You’ve heard about Richard Clark’s itinerant lifestyle. You heard about the events as they unfolded on March thirty-first into April, in the early days of April, including the amounts of alcohol and drugs that the defendant and many of the others involved in this case consumed. To that evidence, we intend to add some additional evidence this morning about Richard Clark’s life.
“The memories of the witnesses are going to be varied,” he said, “because it stretches over a period of twenty-eight years.” For the first time, jurors would hear about the tragic upbringing of Richard Mathew Clark—an upbringing that the defense presented as a mitigating circumstance. Jaquette reminded the jury again that the defense did not need to prove mitigating circumstances—they were presumed. The prosecution must prove the absence of mitigating circumstances.
“Richard Clark was born on August 18, 1968. His mother was named Kathy. And at the time of Richard’s birth, she was married to George Clark Junior. Although George Clark does not believe that Richard is his natural child—and he has made that clear to Richard in the course of his upbringing. Sometime shortly after Richard was born, his mother, Katharine, took a job in eastern Washington driving a truck for a canning company, a vegetable-canning company or something in that order. And Richard and his brother and his sister, older brother and sister, were left under the care of Carol Clark, one of the witnesses who you already met in this case.
“That went on for a period of time, months, maybe a year or so, and then Kathy Clark came back to—from eastern Washington to western Washington—moved into the family home and began to take charge of her family. She had a couple of relationships in that period of time, but when Richard was somewhere around three or perhaps four, she met and married Bob Smith. Bob Smith came from Arlington and it wasn’t long before the family moved back to the Arlington area, and there they lived for a period of time, either in Arlington or Darrington in two or three locations in that area. During this time, the family had a very hard time economically. Kathy Clark, Kathy Smith now, worked at the Reinell boat company, but she broke her neck and was disabled and unable to continue work.
“She received labor and industry payments, but that wasn’t very much,” he said. “Bob Smith did not work and the family had a particularly hard time in making ends meet. They did odd jobs and picked berries and cascara bark, and not surprising to you, I’m sure, they poached a deer or two in order to keep meat on the table.
“Both Bob and Kathy Smith were abusers of drugs and alcohol,” he elaborated, “specifically marijuana and alcohol. This was something that was known to the children in the family. Bob Smith was an abusive father. He emotionally and physically abused the children, especially Richard and his older brother, George. He subjected them to humiliations. He made them do work out in the yard, which was meaningless, picking up rocks out of the ground, putting them into one pile, and when they were in one pile, moved the pile to another place.”
Jurors listened in rapt attention, visualizing the severe physical and mental abuse suffered by the Clark children under Bob Smith’s iron
rule. Jaquette described brutal beatings that left bleeding welts and open sores.
“He beat them with a poker; he beat them with an electrical cord; he beat them so badly from time to time that they bled. One day, Richard went to visit his aunt Carol, who has always lived in Everett. Carol found that he was so badly beaten that he couldn’t sit down, he couldn’t lie down, he couldn’t sleep for two days; he was bruised all over the back of his body. She called Kathy and Bob and said, ‘If I see this again, I’m going to call the authorities.’ Well, she didn’t see it again, because Richard was not permitted to visit Carol for a period of two years.”
Jurors, previously unfamiliar with Richard Clark’s background and upbringing, listened intently to Jaquette’s well-constructed, succinct, yet emotionally evocative narrative. “One month after Richard’s fourteenth birthday, his mother was killed in a single-car accident on Highway 9.” As this event was the prelude to the most pivotal moment in Clark’s young life, the attorney allowed the heartrending implications to sink in before continuing.
“This was a devastating blow to Richard. He was crying—he cried every day about it. Then,” said Jaquette with ominous finality, “at some point, he stopped. He simply closed himself in, never responded to that event again, and began his own career of alcohol and drugs.”
He told the jury how the fragmented and emotionally fragile family members, deprived of the singular source of their united identity, drifted off in their own aimless directions. “Richard was only fourteen, and he got moved in with this relative and that relative. He stayed with George Junior, who was named for his father, husband of his mother at the time of his birth. He moved in with and stayed sometime with Carol Clark, and he spent sometime with his maternal grandparents, the Fellers, in Lake Stevens.
“Nothing was permanent,” said Jaquette sadly, “and nobody took on the job of being a parent. Richard did not finish school, and has kind of been on the street ever since that time. We are going to bring in two witnesses to discuss Richard Clark’s life. One will be Carol Clark, whom you’ve already met in the trial phase of this case, and the other will be George the second, not George Junior, the father, but George the second, who is the brother, the older brother of Richard.
“By your verdict in the trial phase of this case, you have removed the presumption of innocence,” acknowledged the defense. “However, as we begin this penalty phase, and as it goes toward deliberation, Mr. Clark carries with him the presumption of leniency. I would ask you, at this point, to keep an open mind as you hear the rest of the testimony; as you hear the instructions from the court, and the arguments from the attorneys. Then I’ll have another opportunity to come up here and ask you to sentence Richard Clark not to death, but to a life in prison without the possibility of parole. Thanks.”
“You may call your first witness,” said Judge Thorpe.
“Your Honor,” said Jaquette, “the defense first calls Carol Clark.”
The emotional Carol Clark told the entire story of Richard’s life, confirming Jaquette’s pretestimony remarks. She gave specific examples of the deprivation and discipline, acknowledging her own efforts to provide a healthier, stable environment for the children. Her testimony—emotional, sensitive, and heartbreaking—set the tone for Clark’s penalty phase.
Following Carol Clark came Richard’s brother George Clark II. In painstaking detail, and with great emotional pain to the witness, he related the beatings, bruises, and belittlement suffered by his brother and him at the hands of Bob Smith—the alcoholic tyrant who ruled the family with iron fists, electrical cords, and a fireplace poker.
George testified to the “marks that looked like cut marks, but they were welts that busted open” all over Richard Clark’s body. “When I got to be in my teenage years,” said George, “I got too old for the electrical cords and belts, as far as getting beaten. He then went to fists, and I believe Richard was hit with Bob’s fists also.”
George told jurors of the nonstop drinking and drugging he witnessed growing up, so much of it that he thought continual drinking was normal. As for marijuana, “I can remember him [Smith] smoking pot as long as I can remember wondering what it was,” said George Clark II. All of this, he asserted, had a lasting impression on his younger brother.
“When I was married, my ex-wife and I lived down here in Everett. Richard would come over screwed up all the time.” By “screwed up,” George meant “drunk.”
The prosecution, sensitive as anyone to the tragic lifestyle of George, Richard, and their siblings, did not consider it a mitigating factor. “Carol Clark has always been there for Richard, hasn’t she? In fact, Carol Clark has always provided a home for Richard whenever he needed one, isn’t that right?”
“I don’t believe she’s ever turned him away,” confirmed George.
“From what you know of Richard’s life,” asked Vanderlee, “there was never a point where he was on the streets as a homeless kid because Aunt Carol and the grandparent Clarks were always there to give him a home, isn’t that fair to say?”
“I would say he always had a choice to go there,” said George Clark II, “because I don’t believe he ever got turned away.”
Jo Vanderlee did not want the jury’s attention turned away from the horrid acts committed against little Roxanne Doll by Richard M. Clark. “We are here today about Roxanne Doll,” said Jo Vanderlee, “and we are here about justice. We are here about murder and rape and kidnapping, and the concealment of an atrocity committed upon a child of this community.
“We are here about Richard Clark. Not the Richard Clark that sits there in that white shirt at counsel table, but the Richard Clark who went into a trusted friend’s house—someone who trusted him—and took a child from that house, kidnapped that child, raped that child, and murdered that child.
“We are here about justice, justice for Roxanne, justice for Roxanne’s family, justice for this community, and we are here about justice for Richard Clark.”
The next comment by Vanderlee may have been over the line: “In this trial, you are the conscience of the community,” she said. “You are the law, and you decide what justice is and what that defendant deserves.
“What Richard Clark deserves is an answer on the verdict form of yes, that he does not merit leniency. The death penalty is reserved for the most serious crimes, and for the most dangerous offenders. You heard the evidence in the trial phase and you know, from your verdict, that the most serious crime has been committed, and that man, ladies and gentlemen, is the most serious, the most dangerous—”
“Objection, Your Honor,” interrupted Bill Jaquette.
“Overruled,” replied Thorpe.
“You have a difficult question ahead of you, a very difficult question,” said Vanderlee to the jury. “That question is, has the state proven to you beyond a reasonable doubt that there are not sufficient mitigating circumstances to merit leniency?”
Vanderlee provided the state’s unshakable conviction that no such mitigating circumstances existed to justify a sentence of less than death. “There is nothing about this crime, and there is nothing about this defendant, that merits leniency. Nothing can excuse this crime—not his crummy childhood, not alcohol, and not drugs. There is nothing that can excuse this crime.
“The defense is offering Bob Smith to you as a piñata—a human piñata—something to distract you away from the defendant,” she said, “so that you will look at it and you will say that’s really the bad thing. Let the defense take swings at someone who is not here to defend himself and bash Bob Smith, and they’ll be looking at Bob Smith and they won’t be looking at the defendant.
“I submit to you, ladies and gentlemen, Bob Smith did not rape and murder Roxanne Doll, he did not rape her, he did not kidnap her. The defendant did that, he did that all by himself.
“There were five kids that grew up in those circumstances, five kids who went from Everett to Lake Stevens, to Arlington to Darrington. It was a poor family, poor family that was
living in the rural parts of this county, not unlike many, many children who grow up in this county, or grew up in this county during the ’70s. And what do you know from hearing George talk or from hearing Carol and from hearing Toni?” she asked rhetorically. “You know that none of those other kids are child murderers or have raped children or are kidnappers.
“Let’s talk about this crime for a moment,” she said, and recounted the heinous doings of Richard M. Clark. “This was the premeditated killing of a seven-year-old girl, a little girl who has just learned how to read, to ride a bike, she just learned how to swim. This little girl just had hope in her heart when [she] went to bed that night on March 31, 1995. And she was taken from that bed, never to return to it.”
Focusing again on the all-important issue of premeditation, Vanderlee approached it head-on. “Mr. Clark made three choices that night, three choices. He made the choice to kidnap her; he made the choice to take her in a van and conceal her. Once he even got her out to the van, he could have stopped himself; he could have said, ‘I am not going to take her, I’m just going to put her back in the bedroom.’ He didn’t do that. He made a second choice; he made the choice to rape her.
“Even after he raped her, he didn’t have to leave her in that injured condition. The defendant could have returned Roxanne to the parents’ home, to a hospital, he could have even left her on a street somewhere, where someone could have found her. But he didn’t do that.
“He didn’t show very much mercy. After she was injured from the rape, he stabbed her seven times. It was a slow death, several minutes to half an hour. Whether she died in the back of his van or whether it was on that slope or anywhere in Everett.”
From the time she was dying, said Vanderlee, he made a third choice: “And that choice was not to take her to a hospital. He made a third choice to bury her where he hoped she would never be found. Is there anything about that that could justify a sentence of less than death?