by Burl Barer
Judge Thorpe thanked Jaquette, then turned to the deputy prosecutor. “Mr. Doersch?”
In response, Doersch went politely ballistic. “He just asked the court to do precisely what the case law says it ought not to do, examine thought processes of a jury in coming to its verdict. How is this jury misconduct? I’m listening to this. ‘We were told to look for some mitigating circumstance, but he didn’t help us find any.’ Who told him to look for that? I guarantee the state did not do so, the defense did that.”
“I think the instructions of the court,” said Thorpe dryly, “required them to do that.” Doersch courteously nodded at the blunt, professional correction.
“We have to prove beyond a reasonable doubt that there are no mitigating circumstances,” said the prosecution. “What I see here, these quotes the defendant gives us, what I see is a jury looking hard to find some reason not to sentence this guy to death and can’t find it.”
Doersch paused to collect his thoughts. “I’m getting ahead of myself here,” he acknowledged. “What I’m telling the court is this, this is not jury misconduct. In the first place, even if the PI reporter comes in here and testifies, that’s hearsay. Even if he swears out an affidavit to what he heard, that’s not permissible. What the jury does in the jury room in terms of its considerations, its thought processes—the case law is absolutely clear on that.”
The defense was also absolutely clear that they still had another issue to address. “It would be our position,” said Jaquette, “that making an effort to look over and watch Mr. Clark as he sits at counsel table is akin to going out to the crime scene and taking a look around during the course of a trial, and it is essentially getting additional information, additional facts upon which to make a decision.”
This argument was a new approach, and both judge and prosecution listened carefully to the defense’s line of reasoning. “The inferences that can be drawn by the way Mr. Clark sits at counsel table, most of the things that his lawyers tell him to do. He’s heard the evidence before, all about the evidence and countless pretrial hearings about what’s admissible, what pictures are admissible, what isn’t, so it’s not as if he’s surprised by these things, as this is not his first time through that. So the inferences are very misleading, the reasonable inferences are very unfair. But be that as it may, it is simply evidence outside the province of what was presented at court and the jury went out of its way to look elsewhere for their answer.”
In the defense’s opinion, “the jury was disregarding directives from the court about whose burden of proof it was and whether the defendant, whether any inference should be drawn from lack of the defendant’s testimony. I think in this case, and I’ve indicated in my brief that we are under the special circumstances of a death penalty case where the Eighth Amendment to the United States Constitution, and Article One, Section Nine, of the Washington Constitution compel a particularly reliable proceeding, and when the jury goes beyond what they are told, or what they are presented with, when the jury uses things and creates inferences against what they were told, we don’t have a reliable proceeding, and Mr. Clark should therefore get a new penalty phase trial.”
Judge Thorpe leaned back and thought it over. In his response, he sided with Ron Doersch. “I don’t think that that indicates that they did not follow the directives of the court or the instructions of the court with respect to the burden of proof. It was simply a question of fact for this juror in answering a question put to him or her by the reporter. The defendant had put some evidence on, and they found that that wasn’t sufficient. And I’m inclined to agree with Mr. Doersch that the statements made here indicate to me a jury that undertook its duties very soberly, very judicially, very carefully, and were looking for mitigating circumstances and didn’t see any.
“The second statement that he would have had, or might have had, a better chance if he testified,” continued Thorpe, “well, they knew that he did not have to testify, they were instructed that they were not to consider the fact that he did not testify. And for the juror to say after it was all over with kind of a Monday-morning quarterbacking kind of a thing, which is what the reporter’s inquiries generally prompt one to do. To say he would have had a better chance if he testified is that person’s guess, certainly doesn’t indicate to me that they talked about that during their deliberations, or that they did not heed the court’s instructions, that they were to draw no conclusion because he didn’t testify.
“The first thing you mentioned was the defendant’s demeanor,” the judge said to Jaquette. “It must be borne in mind that this trial took about three weeks, that there was some—well, there was a good deal of evidence that tended to implicate Mr. Clark in the crime, and the jury was sitting in a position where they could easily see Mr. Clark, and during some phases of the trial, I noticed they were looking at him a lot. I don’t think that the defendant’s demeanor is extrajudicial. It’s not the same as the jury going out and driving through an intersection someplace that may be the subject of a suit, or going down and retracing the route that he may have taken from the site on East Grand to Lombard Street, or anything of that nature.
“It’s something that happened within the courtroom, something that happened that was entirely under the control of the defendant. And as an example, if at the penalty phase, as Ms. Doll-Iffrig left the witness stand and went to take her place in the audience, if the defendant had flipped his middle finger at her, surely the jury could have taken that into consideration. And I wouldn’t deem that to be something extrajudicial or improper for them to consider. Same too, if he had shown hurt. He doesn’t have to show surprise, but if he had shown hurt or showed something that would indicate that he really was remorseful, really was sorry for this, surely the jury could have taken that into consideration. I don’t think that the demeanor of the defendant while sitting in the courtroom is extrajudicial, or watching him is an extrajudicial activity that would vitiate the jury’s verdict. That motion will be denied.
“Any others?” asked the judge.
“None from the state,” replied Doersch.
“Just matters relating to offender score,” commented Jaquette.
The court took a fifteen-minute recess, after which Gail Doll stood and read aloud the unedited version of her victim impact statement.
“The physical loss of having lost a child this way is that you are never able to see them grow up,” began Gail Doll. She read the statement with an undeniable intensity tempered with tragic resignation.
“The emotional impact of this crime is that we all feel a hole in our lives. I feel lost every now and then. Mad at others, scared that if this could happen to her, who’s to say it won’t happen again.
“One of my biggest fears is that my youngest won’t reach age eight. She just turned seven in January. I stayed up half the night worrying. For the first year, I didn’t leave the house at night. I would call several times when I did. I didn’t let them (the kids) leave the yard to play at neighborhood friends’ houses. This last summer was the first time I let them go to friends’ houses on their bikes or walking.
“I’m emotionally drained when I come back from the court hearings. I used to sleep about four hours at night. I have good and bad nights. It took over six months to get Nick and Kristena to sleep in their own rooms and Kristena still ends up in our bed sometimes. We went through grief counseling until the kids said no more.
“Nick and Kristena miss Roxy a lot. If we do something, like see a new movie, they say how Roxy would have liked it. They will say out of the blue how much they miss her. My son got behind in school because he couldn’t focus. He still hasn’t caught up.
“Roxy is truly and desperately missed by her family. We miss the way she laughed and the funny way her mouth moved when she was being silly. We miss just holding her; we miss her smile. The way you couldn’t stay mad at her when she cried. We still goof and try to call her for dinner or in from outside. Sometimes we even call Kristena ‘Roxy’ by mistake.
“She’s a part of us we can never get back. Though in our hearts she is always with us, it still cannot take away the fact that she is not with us. The holidays and birthdays that have been shattered by her absence; the eternal missing piece of our family.” Gail Doll sat down and cried.
“Your Honor,” said Bill Jaquette, “the court is compelled to enter a sentence of death. There is not much we can say at this point that would do any good. I would say that on behalf of Mr. Scott and myself, we would thank Mr. Clark for the understanding that he’s had during these proceedings, for what we have tried to do, and that peace that he’s had and shown during these proceedings.”
Bill Jaquette paused a moment, and the courtroom’s atmosphere was chilled by mutual anticipation of the inevitable. “Mr. Clark is not an animal, he’s a human being with a soul. He stands here to pay the ultimate punishment, and Mr. Scott and myself are very sad about it. But we are here to take the verdict of the court.”
Judge Thorpe looked directly at Richard Mathew Clark, convicted kidnapper, rapist, and murderer. “Mr. Clark, is there anything you would like to say before I pass sentence?”
“Yes, I do,” he replied, and Richard Clark spoke his first complete sentence in Judge Thorpe’s courtroom. “I have sympathy for the seven-year-old girl, what happened to her. But for the Iffrig family, they are the murderers.” An audible gasp of collective disbelief punctuated his comment. Tim Iffrig, overwhelmed with outrage at Clark’s statement, abruptly left the courtroom.
“I had to leave,” said Iffrig, “I had a pocketknife on me, and right then I wanted to . . . Well, I had violent feelings toward him. I think the only thing that stopped me was that I didn’t want my family to go through the pain of another trial.”
A security guard confirmed that Iffrig left the courthouse with a four-inch serrated blade, and declared the court’s metal detectors worthless.
“I can’t believe that this is happening,” said Richard Clark to Judge Thorpe. “I’ve been in shock for the past two years. And I’m here today. That’s all I have to say. Thank you.”
Judge Richard Thorpe sighed. “Mr. Clark, in view of what your life could have been, and in view of the tragedy of Roxanne Doll’s final minutes of life, it is with profound sadness, but with no regret, that I sentence you . . . to death”
After being sentenced to death, any other matter would seem inconsequential and anticlimactic. Clark didn’t seem much concerned when the judge advised him that he owed $100 in crime victim penalty, and registered no dismay when informed that he may no longer own or possess any firearm, and must surrender any concealed-pistol license.
“I assume you don’t have a concealed-weapon permit on you,” said Judge Thorpe to the man whom he had sentenced to death, “Also, you have the right to appeal this sentence. This right must be exercised by filing a notice of appeal within fifteen days.”
Bill Jaquette already had the appeal papers prepared. Thorpe signed all appropriate forms; Richard Clark returned to prison. As Clark was led out of the courtroom, he ignored repeated questions from reporters asking him what he meant by calling Roxanne’s family “murderers.” Even defense attorney Bill Jaquette said he did not fully understand Richard Clark’s comments. On his way out the door, Richard Clark called out, “See ya; wouldn’t want to be ya.”
The battle for the life and future of Richard Mathew Clark was then handed over to a higher power—the Washington State Supreme Court.
Chapter 21
Before a death sentence can be upheld, the state supreme court must ascertain if the sentence of death was brought about through passion or prejudice. If so, the sentence cannot stand.
Clark’s appeal would argue, as did Bill Jaquette at the time of sentencing, that the sentence was indeed the result of passion and prejudice. The appeal would note several reasons for the sentence falling under that unwelcome classification.
The media coverage of Roxanne’ s disappearance and death, as previously noted, saturated the community over an extended period of time. In addition to the publicity, members of the community actively participated in the search for Roxanne, wore angel pins to support her family, and provided the funds for her funeral. Because Richard M. Clark’s motion for a change of venue was denied, virtually all of the jurors were aware of the pretrial publicity and of the extensive involvement of their community in the response to the crime.
The jurors knew their decision whether or not to impose the death penalty might evoke strong community reaction. During the penalty phase closing argument, the prosecution told the jury that they were the “conscience of the community,” that they “were the law,” and that they “decide what justice is.” The appeal would argue that in making these statements, the state improperly placed a burden on the jurors to either convict Clark or answer to their community and society at large.
The prosecution’s argument also may have improperly described the jurors’ role and power as something greater than and different from their sworn duty to uphold the law as provided to them by the court, and to vote for the death penalty only if the lack of mitigation had been proven beyond a reasonable doubt. Most importantly, this argument implied that it was the jury’s duty to sentence Clark to death.
The United States Supreme Court previously ruled, “That kind of pressure (exhorting the jury to do its job by convicting the defendant) has no place in the administration of criminal justice.” The prosecution’s argument, the appeal would insist, pressured the jury to return a verdict based on passion or prejudice, instead of a reasoned decision based on the law.
It was the state’s strategy at the penalty phase of presenting facts underlying Clark’s conviction for the unlawful imprisonment of Feather Rahier that could be the most viable reason for granting a new penalty phase, if not a new trial.
The state argued, asserted the appeal, that Richard Clark should be executed, not because of the circumstances of the crime charged, but because of its unproved claim that Clark had lived his life preying on the young and weak and would continue to exhibit this character trait in the future.
The prosecutor argued that Clark was “the most dangerous of offenders, he preys on the young, he preys on the vulnerable.” The prosecutor reminded the jury that Clark, in the past, had tied up Feather Rahier. “This clear request for a decision based on an unsupported characterization of Mr. Clark’s life,” stated the appeal, “and an unfounded and irrelevant prediction of future dangerousness invited a decision based on passion or prejudice.”
“If the death penalty were not imposed, Richard Clark would live the rest of his life in prison,” stated appellant’s attorney Rita Griffith, “and there was no evidence of any kind that he would pose a future problem in prison.
“The evidence at the trial’s penalty phase showed that Richard Clark, for most of his life, was the weak and the vulnerable victim of his stepfather and mother,” said Griffith. “The prosecutor also improperly shifted the burden to the defendant by asking rhetorically if there was anything that could justify a sentence of less than death.”
These arguments by the prosecutor, the appeal insisted, demonstrated that the state’s strategy was to secure a conviction based on passion and prejudice.
The state filed a cross appeal, defending itself against the allegations. As with other cross appeals to the state supreme court, the man responsible was deputy prosecutor Seth Fine. One by one, Fine argued against each issue raised by the excellent attorneys assigned to represent Richard Clark’s appeal to the state supreme court.
In our daily lives, no one ever wins an argument unless the argument is over matters of fact. Two people can argue about the correct spelling of “Mississippi,” and the argument will end once the prolix disputants consult a dictionary. Should they argue, however, about which city in Mississippi has the most pleasing aroma, no one will win because the argument is one of personal opinion, not established fact.
In matters of legal interpretation, a covenant exists whereby a
ll agree to abide by the decision of a third party empowered to render decisions of interpretation and application of the law. In an appeal to the state supreme court, the defendant states what errors of interpretation and application were made by the superior court. Legal precedents, previous rulings, and prior interpretations by the state supreme court and the United States Supreme Court back up these arguments.
The prosecutor, in response, will argue that there were no errors of interpretation or application in the specific instances cited by the defense. In Richard M. Clark’s appeal, the defense attacked every issue from pretrial through penalty phase, beginning with a renewed challenge to the supreme court’s previous ruling allowing the state to seek the death penalty.
“This court rejected that argument,” wrote the state supreme court, “finding that Clark’s trial counsel actually received notice of the intent to seek the death penalty within the statutory period for filing the notice. Clark invites us to revisit that holding essentially because, in his estimation, the court incorrectly applied the requirements. . . .”
The law, however, prevented Clark from seeking further reconsideration of the supreme court decision. “Where there has been a determination of the applicable law in a prior appeal, the law of the case doctrine ordinarily precludes redeciding the same legal issues in a subsequent appeal. It is also the rule that questions determined on appeal, or which might have been determined had they been presented, will not again be considered on a subsequent appeal if there is no substantial change in the evidence at a second determination of the cause. The supreme court is bound by its decision on the first appeal until such time as it might be authoritatively overruled.”
Only if the holding of the prior appeal was clearly erroneous, or if the ruling resulted in “manifest injustice,” would it be reconsidered.
“The court’s unanimous ruling in Clark I is not clearly erroneous. Clark presents no new theory as to our purported error,” wrote the supreme court, “and we cannot find one. While Clark argues that allowing the death penalty to remain intact in light of this issue is a manifest injustice, we noted in Clark I that ‘it is not disputed the notice was received by counsel for Clark within the statutory period.’”